090604

MASTER LETTER OF ELECTION


VERSION 090604

Services:
The parties may enter into one or more “Service Type Election” (STE) to this Master Letter of Election (MLE), with each STE referencing this MLE, signed by authorized representatives of the parties, identifying the services to be provided by ProsLink to Client, the fees to be provided by Client to ProsLink, and other terms and conditions applicable to the services of that STE. As used herein, the term “Services” refers collectively to all services identified in all Service Type Elections, and may include standard services provided by ProsLink to its customers, or technical, supplemental, or professional services specific to Client. As used herein, the term “Third Party Products” means third party hardware and or software identified on an STE as being provided by ProsLink to Client. As used herein, the term “Fees” refers to all fees identified in this MLE and in all STEs, and may include recurring fees, one‐time fees, fees for Third Party Products or services, reimbursable expenses, and costs.

Standard Technician Services:
The ProsLink, Inc. (hereafter referred to as ProsLink) Technician rate for service is $100 per hour. Reduced rates are available if pre-paying for blocks of time consisting of 5 hours or more. This price represents the labor aspect of service and does not reflect the equipment necessary to accomplish Client goals. Labor hours may be used for support- related requests or projects at the request of the Client. Appointments scheduled outside normal business hours (Monday through Friday from 8am to 5pm) will be subject to time-and-a-half billing. Emergency (same day) service, as well as weekend service requests are subject to double billing rates. On-site technician time is assessed from the point the technician leaves the ProsLink main office until he returns. ProsLink is not liable for coincidental hardware or software related problems with customer premise equipment which may occur during ProsLink maintenance. It is ProsLink’s policy to give proper notification of any known risk (such as data loss, server down-time, etc…) that may be involved in our maintenance procedures and proceed ONLY with the explicit authorization of the customer. One hour minimum service time is billed per service request. Service time is assessed in one-hour increments thereafter. Rate for hourly service is subject to change at any time.

Pre-paid Technician Service Hours:
When executed, this section applies to a Service Type Election for Pre-paid Technician Service Hours. Pre-paid labor hours may be used for service and support-related requests for all of ProsLink’s services and products at the client’s discretion. All terms and conditions of our Standard Technician Services (see above section) are applicable. Service time is assessed in 15-minute increments.

Flex Support Technician Service Hours:
When executed, this section applies to a Service Type Election for Flex Support. Flex Support labor hours may be used for service and support-related requests for all of ProsLink’s services and products at the client’s discretion. Labor hours left over from a previous month do not accumulate or rollover to the succeeding month. Client who uses more than their allotted time per month will be billed at normal hourly rate minus 25%. All terms and conditions of our Standard Technician Services are applicable. Service time is assessed in 15-minute increments.

Maintenance Agreement:
When executed, this section applies to a Service Type Election for a Maintenance Agreement. ProsLink will respond to all maintenance requests within four business hours of receiving the request. For some hardware/software problems, ProsLink may require the client to perform certain actions in order to help diagnose and/or fix the immediate problem presented. Client agrees to perform the requested tasks. Maintenance Agreements do not include the following: 1)Physical repair of printers or monitors 2)Training of third-party software or applications 3)Support or physical repair of FAX or Copier Machines 4)Support or physical repair of telephones or telephone systems 5)Support of network printers unless listed in a maintenance agreement 6)Installation or physical repair of data cabling, Ethernet wiring, phone wire, or electrical wiring 7)Installation and support of third party software or applications unless listed in the maintenance agreement 8)Installation of new equipment/hardware unless replacing an existing item currently under maintenance which will be promptly removed 9)Transportation or moving of devices covered under a maintenance agreement to another facility or physically separate building from where they are currently located 10)External peripherals are not supported (i.e. scanners, PDAs, Smart Phones, webcams, MP3 players, external hard drives, external CD-ROM drives, speaker systems, or any proprietary external peripheral). If any item is not specifically mentioned, it is not included.

Co-Location Service Agreement:
When executed, this section applies to a Service Type Election for a Co-Location Service Agreement. Prior to installation, the customer should meet with the ProsLink technicians who are responsible for co-located equipment. Dedicated Internet bandwidth for co-location equipment may be purchased in addition to the shared burstable bandwidth that may have been provided with your Co-Location Service Agreement. Dedicated Internet bandwidth will guarantee your equipment a certain amount of bandwidth as specified in a Service Type Election for a Co-Location Service Agreement. If any item is not specifically mentioned, it is not included. All above terms, conditions, and the ProsLink Acceptable Use Policy (http://www.proslink.com/aup/) are applicable in full to all Co-Located devices.

Virtual Machine Hosting:
When executed, this section applies to a Service Type Election for a Virtual Machine Hosting Agreement.  Client will ensure that all Client’s users adhere to the Acceptable Use Policy posted on http://www.proslink.com/aup/) as amended from time to time (“AUP”). ProsLink will notify Client at least thirty (30) days in advance of amendments to the AUP. Client will provide reasonable cooperation with ProsLink to assist ProsLink in provision of the Services. If any Client personnel are permitted to enter into ProsLink’s premises, such personnel shall adhere to ProsLink’s applicable policies and procedures for visitors and for security. In the event that Client locates any of its property on ProsLink premises, Client agrees that it shall appropriately insure such property (ProsLink is under no obligation to insure such property), and that Client shall indemnify, defend, and hold ProsLink and ProsLink’s other Clients harmless from and against any damage to persons or property caused by such property.  In the event Client’s personnel are provided with access to ProsLink’s premises, Client shall indemnify, defend, and hold ProsLink and ProsLink’s other Clients harmless from and against any damage to persons or property caused by such Client personnel. Client acknowledges and agrees that in the event that Client purchases any server cooperative services: (a) Client grants ProsLink a license to control Client’s property used in connection with such server cooperative services (b) Client represents and warrants that such license does not breach any agreement that Client may have for such property.

Hardware & Software Sales Agreement:
When executed, this section applies to a Service Type Election for a Hardware & Software Sales Agreement. ProsLink makes no warranties, express or implied, regarding the quality or functionality of the products. ProsLink accepts no liability for damage caused by defective or malfunctioning products. In case of defect or malfunction, the product may be repaired or replaced by the manufacturer in accordance with the manufacturer’s warranty. ProsLink will assist with defective or malfunctioning equipment for 30 days from the date of install at no charge to the undersigned. If ProsLink’s assistance is requested after 30 days, the undersigned will be billed at our normal hourly rates. In the event the Customer chooses not to purchase after delivery, or to return the equipment listed in the Hardware & Software Sales Agreement, a 25% restocking fee will be assessed. No returns of any kind are allowed after 30 days. Shipping charges will apply to all items and will not be known until time of purchase.

Hardware Rental Agreement:
When executed, this section applies to a Service Type Election for a Hardware Rental Agreement. The term of the Agreement begins on the Rental Origination Date shown in the Agreement and continues thereafter for the number of months specified on the Agreement. In the event that the term of the Rental is month-to-month, the Agreement will continue until cancelled in writing by either party with thirty (30) days notice. Client acknowledges that the equipment serial number must be added to the Agreement once the actual installation occurs. ProsLink makes no warranties, express or implied, regarding the quality or functionality of the products. ProsLink accepts no liability for damage caused by defective or malfunctioning products. In case of defect or malfunction of the leased equipment, ProsLink agrees to repair or replace it. ProsLink also reserves the right to replace equipment as needed or appropriate. Client may be responsible for purchase of the equipment if abused, misused or damaged while in Client possession at the original cost of the equipment. If Client chooses to terminate the Agreement prior to completion, Client will be charged an early termination fee equivalent to the remaining total payments. All equipment will be returned to ProsLink at the conclusion or termination of the Agreement. If equipment is not returned at the conclusion of the Agreement at the request of ProsLink, Client understands that the full replacement cost of the equipment plus collection and attorney fees will be charged to them and will be considered due and payable immediately.

Monitoring:
When executed, this section applies to a Service Type Election for an Monitoring Agreement. The undersigned agrees to be bound by the Acceptable Use Policy (http://www.proslink.com/aup/).

Web / E-Mail Hosting Agreement:
When executed, this section applies to a Service Type Election for a Web / E-Mail Hosting Agreement. The undersigned agrees to be bound by the Acceptable Use Policy (http://www.proslink.com/aup/).

Web / E-Mail Content Filtering:
When executed, this section applies to a Service Type Election for a Web / E-Mail Content Filtering Agreement. The undersigned agrees to be bound by the Acceptable Use Policy (http://www.proslink.com/aup/).

Offsite Data Backup:
When executed, this section applies to a Service Type Election for an Offsite Data Backup Agreement. The undersigned agrees to be bound by the Acceptable Use Policy (http://www.proslink.com/aup/).

Onsite Data Backup:
When executed, this section applies to a Service Type Election for an Onsite Data Backup Agreement. The undersigned agrees to be bound by the Acceptable Use Policy (http://www.proslink.com/aup/).  Vembu and Storegrid Product is part of the Bundled/Hosted Service, and not the sale or transfer of ownership of the Vembu or Storegrid Product or any intellectual property rights therein.  Client acknowledges that it has no right or license to access or use the Vembu or Storegrid Product and that only ProsLink may access or use the Vembu or Storegrid Product on behalf of Client.

Trend Micro Anti-Virus Service:
When executed this agreement will provide for a non-exclusive license/right to use the Trend Product and Trend Service as part of the Bundled/Hosted Service, and not the sale or transfer of ownership of the Trend Product or Trend Service or any intellectual property rights therein.  Client acknowledges that it has no right or license to access or use the Trend Product or Trend Service and that only ProsLink may access or use the Trend Product or Trend Service on behalf of Client.

Client understands and agrees that use of the Trend Product or Trend Service as part of the Bundled/Hosted Service is not error free or uninterrupted. Client may not decompile or disassemble or reverse engineer the Trend Product or Trend Service.  Client understands and agrees that neither ProsLink nor Trend have any liability by way of consequential, incidental, special or punitive damages resulting from viruses, worms, Trojan horses or other harmful matters that may affect Client’s computers.  Client agrees that Trend Micro is a third party beneficiary of this agreement.

Third Party Products:
All Third Party Products are provided on an AS IS basis, without warranty from ProsLink of any kind, express or implied. Client agrees to abide by the applicable third party manufacturer purchase or licensing agreements. For Client’s convenience, ProsLink  may make copies of many third party manufacturer purchase and license agreements available on its website.

Reseller Agreement:
In the event that, as a client of ProsLink, you re-sell any services to a third party, in addition to the terms and conditions outlined in the specific Service Type Election, you also agree to the following:

ProsLink will not provide services for any organization, other than the company with whom the original ProsLink Master Letter of Election is signed. A violation of this agreement will, at ProsLink’s discretion, subject the client to immediate termination of all services. Furthermore, the balance of the amount due on the original Service Type Election will be due in full at the time of termination due to violation of this agreement.

Service Warranties:
Other than the service type and class of service level commitment agreed upon in a Service Type Election agreement or this document, the service is provided on an “as is” basis without warranties of any kind, either express or implied, including but not limited to warranties of title, non-infringement or implied warranties of merchantability or fitness for a particular purpose. No advice or information given by ProsLink, its affiliates or its contractors or their respective employees shall create a warranty. Neither ProsLink nor its affiliates warrants that the service will be uninterrupted or error free or that any information, software or other material accessible on the service is free of viruses, worms, Trojan horses or other harmful components.

Under no circumstances shall ProsLink, its affiliates or its contractors or suppliers be liable for any direct, indirect, incidental, special, punitive or consequential damages that result in any way from Clients use of or inability to use the service or to access the Internet or any part thereof, or Client reliance on or use of information, services or merchandise provided on or through the service, or that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission, or any failure of performance or of backups, including interruption of or damage to Clients computer, network or any related equipment, including outage conditions and/or downtime that may result from work performed by ProsLink.

Fees and Billing:
Bills are due and payable within thirty (30) days of the billing date. Invoices become overdue the day after the due date. Overdue bills may be assessed an initial late charge of Seventy-five ($75) and an additional 2% per month late charge. Failure to pay your balance in full by the specified due date may result in interruption of service. If your service is interrupted for this reason, ProsLink requires that all past due charges, and possible reconnect fees, and your first month’s service be paid in advance before restoration of service will occur. If your balance remains unpaid after a final balance due notification is sent to your billing address, your account will be transferred to an attorney or collection agency. In such case, you will be responsible for all collection fees and/or attorney fees in addition to your delinquent account balance. Any fee assessed by city, county, state or federal regulation or by any authority having such powers as to impose a fee or fee structure on the Service or use of the Service may be passed along to the end user. At ProsLink’s sole discretion, these fees may also have reasonable administrative charges attached.

Send your payment by check to:
ProsLink, Inc.
Attn: Billing Department
201 North Morton Street
Bloomington, IN 47404

Premature Termination of Contract:
If for any reason the Client is unable to complete the term length of this MLE or any STE, the balance of the contract fees remain due and owing. If the contract is terminated prior to expiration, the remaining contract fees will be billed and considered due and payable in full at the time of termination. If collection efforts are required, Client will also be responsible for interest, collection and/or attorney fees, whichever apply.  Except as otherwise provided for in the applicable STE, fees may include any applicable pro‐rated amounts for incomplete months of Service provision. Client also shall pay to ProsLink all expenses incurred by ProsLink in exercising any of its rights under this Agreement or applicable law.  Client shall also pay all taxes (including without limitation sales, use, property, excise, value added, and gross receipts) levied on this Agreement, except taxes based on ProsLink’s income. Client may provide a tax exemption number or affidavit of exemption, but Client agrees to indemnify and hold ProsLink harmless for taxes, penalties and interest arising from claimed exemptions which are disallowed. ProsLink may charge interest on any invoice amounts that are overdue at the lesser of (a) 1.5% per month or (b) the maximum rate permitted under applicable law.

Intellectual Property Rights and Confidentiality:
Each party to this Agreement retains exclusive ownership and rights to its trade secrets, inventions, copyrights, and other intellectual property, and nothing herein grants any right or license therein to the other party. Upon termination of the Agreement, Client agrees to promptly release any Internet protocol numbers, addresses, or address blocks assigned to Client in connection with the ProsLink Services. Each party agrees to keep confidential all information concerning the other party’s business or its ideas, products, customers or services that could be considered to be “Confidential Information.” “Confidential Information” includes any information belonging to, or in the possession or control of, a party that is marked confidential or proprietary when disclosed to the other party, or, if orally disclosed, is documented in writing to the other party within ten (10) days of the date of disclosure identifying the disclosure as confidential.  Confidential Information does not include any information in the public domain by means other than a breach of this provision by the receiving party, information independently developed by the receiving party, or if required by a court or governmental body to be disclosed; provided, however, that as to the latter, the owner of the Confidential Information is given notice of the requirement of such disclosure in a timely manner to permit the owner to challenge and/or restrict such disclosure.

Contract Terms:
This Master Letter of Election together with any Service Type Election agreements executed contemporaneously or subsequently is a binding contract. Upon the date of signature, client agrees to be bound by the terms of this agreement. Charges for services contained on any Service Type Election agreements executed with this agreement or at a later date begin once ProsLink’s preparations for the service(s) are complete, or as nearly complete as possible if client circumstances prevent completion of the project. The term length of the Service Type Election agreement(s) (months) indicated on those agreement(s) begins once billing for services begins. ProsLink preparation and implementation time prior to billing onset is not considered part of the length of these agreement(s). At the conclusion of the term, these Service Type Election agreement(s) and this Master Letter of Election will automatically renew for an equivalent term unless either party provides written notification to the other party not less than 30 days prior to the expiration of the term.

Disclaimer; Limitations of Liability:
EXCEPT AS EXPRESSLY STATED HEREIN, PROSLINK MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATIONS, REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, TITLE, NON‐INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. PROSLINK MAKES NO REPRESENTATIONS OR WARRANTIES (INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS AND WARRANTIES OF MERCHANTABILITY, TITLE, NON‐INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE), AND SHALL HAVE NO LIABILITY UNDER ANY THEORY OF LAW, FOR ANY THIRD PARTY PRODUCTS OR SERVICES PROVIDED HEREUNDER. IN NO EVENT SHALL PROSLINK BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR FOR LOST PROFITS OR LOST DATA, REGARDLESS OF THE THEORY OF LAW AND EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM. IN NO EVENT SHALL PROSLINK’S LIABILITY HEREUNDER, REGARDLESS OF THE THEORY OF LAW, EXCEED THE AMOUNT DUE PROSLINK UNDER THE APPLICABLE STATEMENT OF WORK IN THE THREE (3) MONTHS PRECEDING SUCH CLAIM, IF ANY.

Non-Solicitation of Employees:
It is expressly agreed and understood by the Client that Client shall not solicit personnel of ProsLink for the purpose of inducing them to join Client’s employ during the course of this Agreement or for a period of one year after the termination of this Agreement nor shall Client employ any employee of ProsLink during the course of this Agreement or for a period of one year after the termination of this Agreement or for one year after such ProsLink employee leaves ProsLink.

Independent Parties:
This Agreement is by and between independent parties. Nothing herein shall be construed or interpreted to give rise to an agency, partnership, franchise, employment, or joint venture.

Force Majeure:
Neither party shall be liable in damages or have the right to terminate this MLE or any STE for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to, weather and other Acts of God, government restrictions, acts of terrorism, wars, insurrections and/or any other cause beyond the control of the party whose performance is affected, however, if the duration of the delay caused by such an event shall exceed forty‐five (45) days, the party who was to benefit from the performance of such act shall have the right to terminate the Agreement by giving written notice, according to this Agreement.

Assignment:
The Client may not assign or otherwise transfer this Agreement or its rights or obligations hereunder, in whole or in part, without the prior written consent of ProsLink. This Agreement shall be binding upon and accrue to the benefit of any permitted assignee or successor, and any such assignee or successor shall agree to perform the obligations of the assignor.

Notices:
Any notice either party desires to give the other party hereunder shall be in writing and shall be delivered to the parties at their addresses set forth herein unless such addresses are changed by written notice. Notices shall be effective upon delivery (a) in person, (b) by certified mail, postage prepaid, return receipt requested, by the receiving party, (c) by a recognized commercial overnight courier that guarantees next day delivery and provides a receipt, or (d) upon confirmed successful transmission if sent by facsimile or e-mail to the recipient’s then‐current facsimile number or e-mail address.

Miscellaneous:
In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect. ProsLink’s failure to insist upon or enforce strict performance of any provision of this agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this agreement. This agreement shall be governed by and construed in accordance with the laws of the State of Indiana, without regard to its conflicts of law provisions. Any cause of action Client may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. This document, together with any contemporaneously or subsequently executed Service Type Election agreement(s), constitutes the entire agreement between Client and ProsLink with respect to the service. Thank you for your trust and confidence in ProsLink.

VERSION 090604

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