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Master Services Agreement

This Master Services Agreement (the "Agreement") is entered into by and between Tommy Thornton, LLC DBA Automates, with its principal place of business at 2434 Southport Way, STE D National City, CA 91950, and the Client, as outlines in the Service Level Agreement.

I. Definitions 

  1. Agreement: This Agreement, together with all Schedules, Scopes of Work ("SOWs"), Exhibits, Appendixes, Service Level Agreements ("SLAs"), and any other documents expressly incorporated herein.
  2. Client Data: All data, information, and materials provided by Client to Automates in connection with the Services.
  3. Confidential Information: Confidential Information means any confidential, proprietary, or trade secret information disclosed by one Party to the other Party, whether orally or in writing, that is designated as confidential or should reasonably be understood to be confidential.
  4. Services: The services to be provided by Automates as described in the SLAs and Scopes of Work ("SOWs").
  5. Bring Your Own Device (BYOD): Refers to the practice of employees, contractors, or other authorized users utilizing personally owned devices—such as laptops, tablets, or smartphones—to access the client's corporate network, applications, or data.

II. Managed Devices 

  1. Automates' pricing model is based on the total number of active devices under management.
  2. Managed Devices are defined as any device requiring active monitoring, management, licensing, and/or agents, including workstations and servers.

III. Non-Managed Devices 

  1. Non-Managed Devices are defined as any device NOT requiring active monitoring, management, licensing, and/or agents, including workstations, laptops, notebooks, servers, network devices, and occasionally network printers.
  2. Non-Managed Devices will be serviced at no additional charge.
  3. The total number of Non-Managed Devices allowed is limited to 5% of Managed Devices under management. Exceeding this threshold will incur additional fees outlined in the pricing schedule.
  4. Automates is not responsible for managing, securing, or supporting Non-Managed devices unless otherwise specified in a separate agreement

IV. Bring Your Own Device (BYOD)

  1. Clients that permit employees or third parties to use personal devices for work acknowledge that Automates is not responsible for managing, securing, or supporting BYOD devices unless otherwise specified in a separate agreement. Automates will provide reasonable best-effort support for network access and application compatibility but assumes no liability for security breaches, data loss, or performance issues arising from unmanaged devices. The client is responsible for enforcing security policies, including endpoint protection, access controls, and compliance with applicable regulations.

V. Workstations 

  1. Approved Workstations
    1. Automates recommends the use of specific workstation models and configurations to ensure compatibility, security, and optimal performance.
    2. Clients are encouraged to consult with Automates before purchasing new workstations.
  2. Not Approved Workstations
    1. Workstations that do not meet minimum system requirements, industry-specific compliance regulations, or pose security risks may not be fully supported.
    2. Automates reserves the right to decline support for workstations that are not approved.
    3. Not approved devices may incur additional charges.

VI. Printers 

  1. Approved Printers
    1. During the onboarding process, Automates will perform a network scan to discover all printers on the network.
    2. Automates will assess the printers for serviceability, considering factors such as:
      1. Supported printer models: Automates will maintain a list of supported printer models and brands.
      2. Driver compatibility: Automates will ensure compatibility with the client's operating systems and software.
      3. Network connectivity: Automates will verify the printer's network connectivity.
    3. Automates will provide the client with a list of approved printers.
    4. Any new printer added to the network must be approved by Automates prior to being placed into service.
  2. Not Approved Printers
    1. Certain printers may not be serviceable due to factors such as:
    2. End-of-life models with limited driver support.
    3. Incompatibility with the client's network infrastructure.
    4. Known issues with reliability or performance.

VII. Peripherals 

  1. Approved Peripherals
    1. Automates will maintain a list of supported peripheral devices, i.e., scanners, external hard drives, web cameras, etc.
    2. Clients are encouraged to consult with Automates before purchasing or installing new peripherals to ensure compatibility and support.
  2. Not Approved Peripherals
    1. Peripherals that are not supported or may cause compatibility issues may be excluded from support.
    2. Automates reserves the right to decline support for peripherals that are deemed incompatible or pose a security risk.

VIII. Scope of Services 

  1. General Scope: Automates shall provide the Services to Client in accordance with the terms and conditions of this Agreement and any applicable SOWs or SLAs.
  2. Specific Services: The specific services to be provided by Automates shall be detailed in SOWs or SLAs.
  3. Excluded Services: Any service, device, or location, not identified in the SOW or SLA shall be deemed an "excluded service" and is not covered by this agreement. Excluded services are sold separately.

IX. Responsibilities of Automates 

  1. Automates will exercise commercially reasonable efforts to promptly deliver and support the Services for the Client, in accordance with prevailing industry standards.

X. Client Responsibilities 

  1. While Automates aims to provide comprehensive IT services, some responsibilities still lie with the Client. This includes warranty support for all managed devices. It's essential to maintain current manufacturer warranties with suitable support levels due to the diverse range of technologies. Items that exceed their warranty period will be automatically renewed at the client's expense and invoiced by Automates directly to the Client. For products deemed End-of-Life, timely replacements will be scheduled. Proposals detailing the retirement of devices, including cost breakdowns, will be presented to the customer for approval prior to equipment procurement. Additionally, client responsibilities entail:
    1. Firewall licenses, manufacturer support contracts, and network appliance warranties.
    2. Promptly informing Automates of any changes made by the Client within covered systems.
    3. Antivirus and anti-spyware license and support for non-Automates products and services.
    4. Appropriate backup software licenses, manufacturer support, and warranties.
    5. Ensuring genuine and properly licensed 3rd party software and hardware. Examples include:
      1. Microsoft genuine Windows operating systems
      2. Microsoft genuine Office 365 products
      3. Genuine Adobe product licenses
    6. Maintaining technical support contract for 3rd party software not purchased through Automates.
    7. Ensuring secure and encrypted wireless data traffic in all offices, at all times.
    8. Line of Business application support. Examples include:
      1. Intuit UltraTax
      2. Tompson Reuters ProLaw
      3. ShareFile, Dropbox, etc.

XI. Term and Termination 

  1. Term: The term of this agreement is defined in the SLA.
  2. Thereafter, it will renew for successive Renewal Terms as defined on the SLA unless either party provides written notice of non-renewal at least 30 days prior to the term's expiration, unless otherwise specified in the SLA.
  3. Termination for Cause: Either Party may terminate this Agreement for cause upon 30 days' written notice to the other Party if the other Party materially breaches this Agreement and fails to cure such breach within 5 business days of receiving notice.

XII. Pricing and Payment  

  1. Pricing: The charges ("Fees") for Service Offerings are delineated in the Service Level Agreement. Additionally, the hourly rates for Excluded Services, as mutually agreed upon by Automates and Client, are specified in the SLA.
  2. Payment Terms:
    1. Automates will issue monthly invoices to Client based on the Fees outlined in the SLA for Service Offerings. Payments for all Service Offerings are to be made via Automatic Payment and are due in advance on or before the first day of the relevant month. For any Excluded Services rendered to Client by Automates, payment term are specified in the SLA or SOW for such services.
    2. Automates conducts an initial network assessment and monthly account reconciliations of devices, employees, and locations and adjusts monthly invoices as necessary.
    3. Automates is not obligated to perform any services for Client, whether specified in this Agreement or otherwise, until all charges, fees, and taxes for services rendered under this agreement have been settled in full by Client by the due date.
    4. In the event of non-payment of any amount owed under this Agreement, Automates reserves the right to suspend or terminate the provision of all Services without notice. Automates may decide whether to reinstate any Services upon receipt of full payment of all outstanding sums. Any payment not received by Automates within thirty (30) days after the due date will accrue interest at the lesser of one and percent (1%) per month or the maximum rate permissible by applicable law.
    5. Fees are subject to an annual increase of up to 5.2 percent or the current CPI, whichever is higher. All amounts are payable by Client to Automates without the right of setoff, deduction, or demand.

XIII. Credit Card Surcharge 

    1. a. If the Client elects to pay any or all amounts due under this Agreement by credit card, a three percent (3%) surcharge will be added to the total invoice amount. This surcharge is intended to cover the merchant processing fees associated with credit card transactions. The Client acknowledges and agrees to this additional fee when opting to pay via credit card.

XIV. Intellectual Property 

  1. Ownership: All materials, encompassing copyrights, trademarks, logos, and other identifying marks (collectively referred to as "Materials") owned by each party are and shall continue to be the sole property of that respective party.
  2. License: Client grants Automates a limited, non-exclusive, non-transferable license to use Client Data solely for the purpose of providing the Services.

XV. Ownership 

  1. All materials, encompassing copyrights, trademarks, logos, and other identifying marks (collectively referred to as "Materials") owned by each party are and shall continue to be the sole property of that respective party. Unless expressly stated otherwise in this Agreement, no license to utilize such Materials is conferred under this Agreement. The Materials are proprietary and may not be replicated, duplicated, or distributed for any purpose. Any non-third-party software installed or provided by one party for the use of the other party is proprietary software and remains the exclusive property of the party responsible for installation.

XVI. Confidential Information  

  1. While providing the Services, either party may obtain access to the Confidential Information of the other party. Both parties shall employ commercially reasonable measures to safeguard the Confidential Information provided under this Agreement. For the purposes of this Agreement,
  2. "Confidential Information" is defined as:
    1. All inventions, processes, designs, trade secrets, formulas, methodologies, know-how, samples, tests, technologies, standard operating procedures, and other data, as well as any other information pertaining to preclinical, clinical, and pharmaceutical development, analysis, regulatory files and correspondence, manufacturing, and packaging, in any format (written, oral, visual, electronic).
    2. All sales and marketing strategies, future plans, business proposals, financial data, outcomes of consultations, contracts, customer lists and relationships, and any other information that may be disclosed by either party to the other during business negotiations, regardless of format (written, oral, visual, electronic).
    3. Any information designated as Confidential Information by either party.
  3. Confidential Information does not include information that:
    1. The recipient can demonstrate in writing was already lawfully in its possession at the time of receipt.
    2. Becomes publicly known through no fault of the recipient.
    3. The recipient can prove in writing was received from a third party authorized to disclose it without restriction.
    4. Is approved for release by written authorization from the disclosing party.
    5. Is compelled to be disclosed by court or governmental action, provided the recipient gives the disclosing party reasonable prior written notice and an opportunity to seek to prevent or limit the disclosure. For all other purposes, the information remains confidential.
  4. Each party agrees to maintain the strict confidentiality of all Confidential Information and to use it solely for the purposes outlined in this Agreement. Neither party shall, directly or indirectly, use or exploit the other party's Confidential Information without prior written consent. Unless expressly permitted by this Agreement or required by law or court order, Automates and the Client each agree not to disclose Confidential Information—including the terms and conditions of this Agreement—to any third party without the other party's prior written consent. Automates will safeguard the Client's Confidential Information in accordance with Automates's standard Confidentiality Policy.

XVII. Limitation of Liability 

  1. Disclaimer of Warranties: Automates provides the Services "as is" and makes no warranties, express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose, or non-infringement.
  2. Limitation of Liability: In no event shall either Party be liable to the other Party for any indirect, incidental, special, consequential, or punitive damages, whether arising in contract, tort, or otherwise, even if advised of the possibility of such damages.

XVIII. Indemnification 

  1. Indemnification by Automates: Automates shall indemnify, defend, and hold harmless Client from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or related to Automates' negligence, willful misconduct, or breach of this Agreement.
  2. Indemnification by Client: Client shall indemnify, defend, and hold harmless Automates from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or related to Client's negligence, willful misconduct, or breach of this Agreement.

XIX. Hiring of Automates Employees  

  1. Without prior written consent from Automates, and for a duration of twelve (12) months following the expiration or termination of this Agreement, Client agrees not to recruit or engage, either directly or indirectly, any individual who, within the twelve (12) months immediately preceding such recruitment or engagement, served as an employee of Automates responsible for performing the Services or similar services for any of Automates clients.
  2. Automates and Client acknowledge the difficulty in quantifying damages resulting from a breach of this provision. Therefore, in the event of such breach, Client agrees to compensate Automates, as liquidated damages and not as a penalty, an amount equal to twenty-four (24) months' pay for each former Automates employee hired by Client, calculated at the rate paid by Automates for the employee's last full month of employment.
  3. Furthermore, Automates shall have the right to seek temporary and permanent injunctions to prevent or restrain any violation of this provision by Client or any individuals associated with Client. These remedies are in addition to, and not in limitation of, any other rights or remedies available to Automates under this Agreement or in accordance with applicable law.

XX. Approved Third Party Vendors

  1. To enhance the Service Offerings provided by Automates to Client, Automates may utilize third-party providers for certain services. In addition to Automates, Client may be legally bound to the third-party provider's Terms and Conditions. Client may also be subject to, and any other agreements and documents presented by the third-party provider that are required to provide the services, each as amended by the third-party provider from time to time. Third Party Providers may be changed/replaced during the service period.
  2. Current approved third-party vendors:
    1. https://www.kaseya.com/legal/
    2. https://www.ninjaone.com/terms-of-use/
    3. https://www.splashtop.com/legal/terms-of-service
    4. https://www.connectwise.com/company/legal
    5. https://www.itglue.com/terms/https://www.breachsecurenow.com/terms-and-conditions/
    6. https://duo.com/legal/terms
    7. https://www.pax8.com/en-us/terms/
    8. https://axcient.com/master-terms-of-service/
    9. https://www.microsoft.com/en-us/legal/terms-of-use
    10. https://getnerdio.com/legal/
    11. https://www.connectbooster.com/terms-of-service/
    12. https://www.datto.com/legal/terms-of-use
    13. https://www.quotewerks.com/termsofuse.asp
    14. https://app.scalepad.com/pages/terms
    15. https://connectsecure.com/terms-of-service
    16. https://cyberqp.com/terms-and-conditions
    17. https://getbiggerbrains.com/privacy-legal/
    18. https://www.keepersecurity.com/termsofuse.html
    19. https://www.ibm.com/docs/en/maas360?topic=saas-legal-information
    20. https://pia.ai/terms-of-service/
    21. https://www.hatz.ai/terms-of-services
    22. https://www.iubenda.com/terms-and-conditions/56321237

XXI. Force Majeure 

  1. Except for payment obligations, neither party shall be liable for the failure to fulfill any obligation due to circumstances beyond its reasonable control, including, but not limited to, work stoppages, fires, civil disturbances, riots, natural disasters, floods, war, acts of terrorism, transportation delays, accidents, failure of Client to provide a suitable operating environment for Automates, hardware malfunctions caused by software defects or other reasons, failure of Client to grant Automates access to its computer system, acts of God, and similar events. The obligations and rights of the parties shall be extended on a day-to-day basis for the duration of such excusable delay.

XXII. Representations and Warranties 

  1. Each party hereby represents and warrants to the other party that:
    1. It possesses the full right, power, and authority to enter and fulfill its obligations under this Agreement.
    2. The execution, delivery, and performance of this Agreement have been duly authorized by all requisite corporate actions.
    3. This Agreement constitutes a valid and binding obligation of the party, enforceable against it in accordance with its terms, subject to applicable laws affecting the rights of creditors generally.
    4. The execution, delivery, and performance of this Agreement do not or will not contravene or result in a breach or default under:
    5. The governing corporate or company documents of the party.
    6. Any agreement, lease, mortgage, license, or other contract to which the party is a party.
    7. Any law, rule, regulation, order, decree, or consent action by which the party is bound or to which it is subject.

XXIII. Disclaimer Of Warranties 

  1. Automates does not warrant that the Services will operate uninterrupted or error-free, that interruptions will not occur, that the Services will be immune from unauthorized access, or that every security vulnerability of Client's computer systems will be detected. Automates also does not guarantee that results generated by the Services will be error-free, accurate, or complete. All information, materials, and Services are provided to Client "as is." Except as expressly stated in this Agreement, Automates hereby disclaims all warranties, whether express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, and non-infringement. The availability of the Services may be impacted by various factors, such as scheduled or unscheduled maintenance, technical malfunctions of the software, telecommunications infrastructure issues, or interruptions in Internet access. The disclaimers outlined in this section shall remain applicable irrespective of whether:
    1. Automates confirms the security of Client's computer systems.
    2. Client implements modifications to its computer systems as recommended by Automates to enhance security.
    3. Any other circumstances arise.

XXIV. Limitation Of Liability 

  1. Automates will not be liable to Client or any third party for any of the following arising out of this Agreement and/or the Services: any special, indirect, incidental, punitive, or consequential damages, whether based upon breach of warranty, breach of contract, negligence, strict tort, or any other legal theory, and whether or not Automates is advised of the possibility of such damages, including, but not limited to, damages for any loss of profits, loss of data, equipment downtime, or loss of goodwill. Client acknowledges and agrees that Automates's aggregate liability to Client for any damages, losses, fees, charges, expenses, and/or liabilities arising out of this Agreement and/or the Services shall not exceed the fees paid by Client pursuant to this Agreement for the six (6) month period immediately prior to the first occurrence of the applicable damages, losses, fees, charges, expenses, and/or liabilities. Client acknowledges that the limitations on liability were specifically bargained for and are acceptable to the Client. Client's willingness to agree to the limitations of liability set forth in this section was material to Automates's decision to enter into this Agreement. The limitations on liability set forth in this section shall be enforceable to the maximum extent permitted by applicable law.

XXV. General Terms  

  1. This Agreement constitutes the entire agreement between Automates and Client, superseding any prior understandings or written or oral agreements between them regarding the subject matter herein. Any amendment or modification to this Agreement must be executed in writing by both Automates and Client. Waiver of any breach of this Agreement by either party shall not be construed as a waiver of subsequent breaches. Client's obligation to pay for any Services received and certain provisions outlined in Sections 3, 5 through 7, and 10 through 14 shall survive the expiration or termination of this Agreement. The invalidity of any provision shall not affect the enforceability of the remaining provisions. All exhibits and schedules are incorporated into and form part of this Agreement.
  2. This Agreement is binding upon, and inures to the benefit of, Automates and Client and their respective successors and permitted assigns. No other person or entity shall have any rights under this Agreement unless expressly agreed to in writing by Automates and Client. The rights and obligations under this Agreement are not assignable without prior written consent. Any attempted assignment without consent shall be void. This Agreement does not confer any rights, remedies, or claims upon any third party.
  3. This Agreement does not establish a joint venture, partnership, or similar formal business relationship. Each party acts independently and is not an agent of the other. This Agreement may be executed in multiple counterparts, each of which is deemed an original and together constitute one and the same instrument.
  4. The parties may retain an electronically executed copy of this Agreement and agree that a print-out of such electronic copy is considered an original for all purposes related to the enforceability of its terms and conditions.

XXVI. Notices  

  1. All notices required under this Agreement must be in writing and delivered via
    1. Hand-delivery.
    2. Nationally recognized overnight delivery service (such as FedEx, UPS, DHL, or USPS Express Mail).
    3. Electronic mail with verification of receipt.
  2. Notices and communications shall be addressed to the other party at the address specified in this Agreement or at such other address as may be designated by notice in accordance with this Section.
  3. Delivery of notices shall be deemed as follows:
    1. On the date of delivery for hand-delivery.
    2. On the date of delivery or the date of refusal by the recipient for notices sent via nationally recognized overnight delivery service.
    3. Upon verification of receipt for notices sent via electronic mail.

XXVII. Dispute Resolution 

  1. Except as otherwise specified in this Agreement, the parties agree to resolve any controversies, claims, and disputes arising from this Agreement or any Services (collectively referred to as "Disputes") solely in accordance with the terms outlined in this section.
  2. Arbitration: Both parties agree that disputes shall be resolved by final, binding arbitration ("Arbitration") in San Diego, California, administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules.
  3. Governing Law; Venue; Jurisdiction: This Agreement is governed by the laws of the State of California. For actions related to compelling Arbitration, enforcing Arbitration awards, or seeking injunctive relief under this Agreement, the parties' consent to the venue and jurisdiction of the state and/or federal courts in San Diego County, California, USA.
  4. Prevailing Party Attorney's Fees: In any Arbitration or action related to compelling Arbitration, enforcing Arbitration awards, or seeking injunctive relief, the prevailing party is entitled to reasonable attorney's fees and costs.
  5. Injunctive Relief; Cumulative Remedies: Each party acknowledges that a violation of the ownership or non-disclosure provisions of this Agreement could cause irreparable harm for which monetary damages may be inadequate. Therefore, each party reserves the right to seek injunctive relief in addition to other rights and remedies provided in this Agreement. The rights and remedies in this Agreement are cumulative and may be pursued separately or together.