MASTER LETTER OF ELECTION
The parties may enter into one or more “Service Type Election” (STE) to this Master Letter of Election (MLOE), with each STE referencing this MLOE, signed by authorized representatives of the parties, identifying the services to be provided by ProBleu, Inc. (hereafter referred to as ProBleu) to Client, the fees to be provided by Client to ProBleu, 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 ProBleu 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 ProBleu to Client. As used herein, the term “Fees” refers to all fees identified in this MLOE 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 ProBleu Technician rate for service is $125 per hour. Reduced rates are available if pre-paying for blocks of time consisting of 10 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 ProBleu main office until he returns. ProBleu is not liable for coincidental hardware or software related problems with customer premise equipment which may occur during ProBleu maintenance. It is ProBleu’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 (Pre-Paid Labor):
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 ProBleu’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 ProBleu’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 its allotted time per month will be billed at normal hourly rate minus 28%. All terms and conditions of our Standard Technician Services are applicable. Service time is assessed in 15-minute increments.
Managed Services Agreement:
When executed, this section applies to a Service Type Election for a Managed Services Agreement. Remote Helpdesk and Vendor Management of Client’s IT networks will be provided to the Client by ProBleu through remote means between the hours of 9:00 am – 5:00 pm EST Monday through Friday, excluding public holidays. Network Monitoring Services will be provided 24/7/365. It is understood that any and all Services requested by Client that fall outside of the terms of this Managed Services Agreement will be considered Projects and will be quoted and billed separately at an hourly or fixed rate. It is understood that any Federal, State or Local Taxes applicable shall be added to each invoice for services or materials rendered under the Managed Services Agreement. Client shall pay any such taxes unless a valid exemption certificate is furnished to ProBleu for the stated use.
Minimum Standards Required for Services:
In order for Client’s existing environment to qualify for ProBleu’s Managed Services, the following requirements must be met: 1) All Servers with Microsoft Windows Operating Systems must be running Windows 2008 Server or later, and have all of the latest Microsoft Service Packs and Critical Updates installed. 2) All Desktop PCs and Notebooks/Laptops with Microsoft Windows Operating Systems must be running Windows Vista Pro or later, and have all of the latest Microsoft Service Packs and Critical Updates installed. 3) All mobile devices must be running their latest firmware/software versions of their operating systems and must be compatible with an enterprise mobile device management system. 4) All Server and Desktop Software must be Genuine, Licensed and Vendor Supported. 5) The environment must have a currently licensed, up-to-date and Vendor Supported Server based Antivirus Solution protecting all Servers, Desktops, Notebooks/Laptops, and Email. 6) The environment must have a currently licensed, Vendor Supported Server based Backup Solution that can be monitored, and that can send notifications on job failures and successes. 7) The environment must have a currently licensed, Vendor Supported Hardware Firewall between the Internal Network and the Internet. 8) All Wireless data traffic in the environment must be securely encrypted. 9) There must be an outside static IP address assigned to a network device, allowing RDP or VPN access. Costs required to bring Client’s environment up to these Minimum Standards are not included in this Agreement.
Service rendered under this Agreement does not include: 1) Parts, equipment or software not covered by vendor/manufacturer warranty or support. 2) The cost of any parts, equipment or shipping charges of any kind. 3) The cost of any Software, Licensing, or Software Renewal or Upgrade Fees of any kind. 4) The cost of any 3rd Party Vendor or Manufacturer Support or Incident Fees of any kind. 5) The cost to bring Client’s environment up to minimum standards required for Services. 6) Failure due to acts of God, building modifications, power failures or other adverse environmental conditions or factors. 7) Service and repair made necessary by the alteration or modification of equipment other than that authorized by ProBleu, including alterations, software installations or modifications of equipment made by Client’s employees or anyone other than ProBleu. 8) Maintenance of Applications software packages, whether acquired from ProBleu or any other source unless as specified. 9) Programming (modification of software code) and program (software) maintenance unless as specified. 10) Training Services of any kind.
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 must meet with ProBleu 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 ProBleu Acceptable Use Policy (http://www.probleu.com/aup/) are applicable in full to all Co-Located devices.
Co-Location Service Requires The Following:
1.Client must provide emergency contact information
2.Client must provide all software and operating systems for their hosted servers Client must maintain their own operating system and security management
3.Client is responsible for all services/application management
4.Client handles all software installation and management
By agreeing to this service, client hereby waives any and all claims for liability that might otherwise be asserted against ProBleu in the event that client equipment is damaged for any reason or by any means.
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.probleu.com/aup/) as amended from time to time (“AUP”). ProBleu will notify Client at least thirty (30) days in advance of amendments to the AUP. Client will provide reasonable cooperation with ProBleu to assist ProBleu in provision of the Services. If any Client personnel are permitted to enter into ProBleu’s premises, such personnel shall adhere to ProBleu’s applicable policies and procedures for visitors and for security. In the event that Client locates any of its property on ProBleu premises, Client agrees that it shall appropriately insure such property (ProBleu is under no obligation to insure such property), and that Client shall indemnify, defend, and hold ProBleu and ProBleu’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 ProBleu’s premises, Client shall indemnify, defend, and hold ProBleu and ProBleu’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 ProBleu 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 and Software Sales Agreement:
When executed, this section applies to a Service Type Election for a Hardware and Software Sales Agreement. ProBleu makes no warranties, express or implied, regarding the quality or functionality of the products. ProBleu 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. ProBleu will assist with defective or malfunctioning equipment for 30 days from the date of install at no labor charge to the Client. If ProBleu’s assistance is requested after 30 days, the Customer will be billed at ProBleu’s normal hourly rates. In the event the Customer chooses not to purchase after delivery, or to return the equipment listed in the Hardware and Software Sales Agreement, a 40% 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 final invoice.
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 canceled 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. ProBleu makes no warranties, express or implied, regarding the quality or functionality of the products. ProBleu accepts no liability for damage caused by defective or malfunctioning products. In case of defect or malfunction of the leased equipment, ProBleu agrees to repair or replace it at ProBleu’s option. ProBleu 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 ProBleu at the conclusion or termination of the Agreement. If equipment is not returned at the conclusion of the Agreement at the request of ProBleu, Client understands and agrees that Client will owe the full replacement cost of the equipment which will be due and payable immediately plus collection and attorney fees.
When executed, this section applies to a Service Type Election for a Monitoring Agreement. The Client agrees to be bound by the Acceptable Use Policy (http://www.probleu.com/aup/).
E-Mail Hosting Agreement:
When executed, this section applies to a Service Type Election for an E-Mail Hosting Agreement. The Client agrees to be bound by the Acceptable Use Policy (http://www.probleu.com/aup/).
Website Hosting Agreement:
When executed, this section applies to a Service Type Election for a Website Hosting Agreement. The Client agrees to be bound by the Acceptable Use Policy (http://www.probleu.com/aup/).
FTP Hosting Agreement:
When executed, this section applies to a Service Type Election for a FTP Hosting Agreement. The Client agrees to be bound by the Acceptable Use Policy (http://www.probleu.com/aup/).
Website / E-Mail Content Filtering:
When executed, this section applies to a Service Type Election for a Website / E-Mail Content Filtering Agreement. The Client agrees to be bound by the Acceptable Use Policy (http://www.probleu.com/aup/).
Service Type Elections (STEs) for Third Party Software and Services:
All Service Type Elections (STEs) for third party software use, services and support are subject to the following terms: All such STEs provide for a non-exclusive license/right to use the software and service, and not the sale or transfer of ownership of such software and service or any intellectual property rights therein. Client acknowledges that it has no right or license to access or use the Software or Service and that only ProBleu may access or use the Software or Service on behalf of Client.
Client understands and agrees that use of the Software or Service is not error-free or uninterrupted. Client may not decompile or disassemble or reverse engineer the Software or Service. Client understands and agrees that neither ProBleu nor the Software or Service product selected 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 the Software and Service selected is a third party beneficiary of this agreement.
Off-site Data Storage:
When executed, this section applies to a Service Type Election for an Offsite Data Storage Agreement. Client agrees to be bound by the Acceptable Use Policy (http://www.probleu.com/aup/). If ProBleu is requested to restore data/files from backup, ProBleu’s normal labor rates apply.
Dropbox for Business:
The Dropbox for Business Agreement, can be found at: https://www.dropbox.com/terms#business_agreement. Sections 4 (Support) and 9 (Fees and Payment) will not apply while you are a customer of ProBleu. Any terms and conditions from ProBleu or in a purchase order between you and ProBleu that conflict with the Dropbox for Business Agreement are null and void. Fees paid are non-refundable except during the first 30 days of Service or as required by law. You acknowledge that ProBleu will be designated as an Administrator of your Dropbox for Business account and may be able to control account information, including Customer Data, and access to your Dropbox for Business account.
Office 365 Support Agreement:
When executed, this section applies to a Service Type Election for an Office 365 Support Agreement. ProBleu makes no warranties, express or implied, regarding the quality or functionality of the software. ProBleu accepts no liability for damage caused by defective or malfunctioning software.
Office 365 Support includes: (1) Troubleshooting of Office 365 service related issues, (2) assistance on setting up Office 365 applications or e-mail, (3) assistance on Office 365 administrative tools including use of their portal, creating user accounts, changing user passwords, removing users from Office 365, configuration of users applications, (4) escalations to Microsoft as needed.
Optional services at additional cost: (1) data import/export services of client information, (2) server-side manipulations of client equipment, (3) data recovery services of client information.
Not included in the Support Agreement: local 3rd party software issues, local hardware issues, support for 3rd-party applications, operating system issues or troubleshooting. Items not included in the Office 365 Support agreement will be deducted from an existing pre-paid labor block or billed at the normal hourly rate.
As a client of ProBleu, you may not re-sell any services to a third party. ProBleu will not provide services for any organization, other than the Client with whom the original ProBleu Master Letter of Election is signed. A violation of this agreement will, at ProBleu’s discretion, subject the Client to immediate termination of all services. Furthermore, the balance of the amount due on the Service Type Election(s) will be due in full at the time of termination due to violation of this agreement.
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 ProBleu, its affiliates or its contractors or their respective employees shall create a warranty. Neither ProBleu 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 ProBleu, 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 Client’s 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 or copies, including interruption of or damage to Client’s computer, network or any related equipment, including outage conditions and/or downtime that may result from work performed by ProBleu.
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 a late charge of 1.5% per month. 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, ProBleu 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 ProBleu’s sole discretion, these fees may also have reasonable administrative charges attached. Payments made by credit card are subject to processing fees charged to ProBleu. These processing fees will be passed along to Client in the form of a surcharge not to exceed four percent of the payment amount.
Send your payment by check to:
Attn: Billing Department
PO Box 7884
Bloomington, IN 47407
Premature Termination of Contract:
If for any reason the Client is unable to complete the term length of this MLOE 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 ProBleu commences any action or proceeding against Client to enforce the terms of this Agreement, ProBleu shall be entitled to an award against Client for all reasonable attorneys’ fees, costs and expenses incurred by ProBleu in connection with such action or proceeding (including any mediation or arbitration, and at all levels of trial and appeal), and in connection with the enforcement of any judgment or order thereby obtained. Except as otherwise provided for in the applicable STE, fees may include any applicable prorated amounts for incomplete months of Service provision. Client also shall pay to ProBleu all expenses incurred by ProBleu 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 ProBleu’s income. Client may provide a tax exemption number or affidavit of exemption, but Client agrees to indemnify and hold ProBleu harmless for taxes, penalties and interest arising from claimed exemptions which are disallowed. ProBleu 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 ProBleu 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.
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 ProBleu’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. ProBleu 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, PROBLEU 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 AND SHALL HAVE NO LIABILITY UNDER ANY THEORY OF LAW, FOR ANY THIRD PARTY PRODUCTS OR SERVICES PROVIDED HEREUNDER. IN NO EVENT SHALL PROBLEU BE LIABLE FOR ANY DIRECT, 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 PROBLEU’S LIABILITY HEREUNDER, REGARDLESS OF THE THEORY OF LAW, EXCEED THE AMOUNT DUE PROBLEU UNDER THE APPLICABLE STE 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 ProBleu or contractors for the purpose of inducing them to join Client’s employ during the course of this Agreement or for a period of two years after the termination of this Agreement nor shall Client employ any employee of ProBleu during the course of this Agreement or for a period of two years after the termination of this Agreement or for two years after such ProBleu employee leaves ProBleu.
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.
Neither party shall be liable in damages or have the right to terminate this MLOE 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.
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 ProBleu. 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.
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.
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. ProBleu’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 ProBleu with respect to the service. Thank you for your trust and confidence in ProBleu.