Effective as of June 28th, 2024

Master Service Agreement - Prior Versions

This Master Agreement (the “Agreement”) is a binding, legal contract between Design Studios LLC d/b/a RootPoint (“RootPoint,” “Root Point,” “we,” or “us”) and you, the entity making purchases under this Agreement and its Affiliates (“you” or “Client”).

BY CLICKING “I AGREE” WHEN PROMPTED, SIGNING BELOW, OR ORDERING, PURCHASING, ACCEPTING, RESELLING OR USING ROOTPOINT LABOR, PRODUCTS OR FACILITATED SERVICES, YOU ACKNOWLEDGE YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO ABIDE BY ITS TERMS, INCLUDING ALL APPLICABLE “PRODUCT TERMS OF USE.” IF YOU ACCEPT ON BEHALF OF A BUSINESS OR LEGAL ENTITY, YOU REPRESENT AND WARRANT YOU HAVE THE AUTHORITY TO BIND THAT LEGAL ENTITY TO THIS AGREEMENT AND “YOU” WILL REFER TO THAT LEGAL ENTITY. IF YOU DO NOT UNCONDITIONALLY AGREE TO THE FOREGOING, DISCONTINUE USE OF ROOTPOINT PRODUCTS, AND FACILITATED SERVICES IMMEDIATELY. THE ACCEPTANCE OF THIS AGREEMENT IS EXPRESSLY LIMITED TO THE TERMS OF THIS AGREEMENT.

1. ABOUT THIS AGREEMENT

  1. This Agreement governs the interactions between you and RootPoint, including access to any RootPoint facilitated portals and platforms, and your right to purchase Products and Facilitated Services for your own use.
  2. Certain capitalized words are defined in the last section (Section 26) or when first used throughout this Agreement.
  3. If you are bound to more than one agreement with RootPoint and if the agreement terms vary, then the order of precedence is as follows: an Order Form, an agreement executed by you and RootPoint that expressly supersedes standard agreements; an electronic version of an agreement accepted pursuant to an Order or pursuant to a formal written quote, but only with respect to that Order; and any other standard agreement, including this Agreement.

2. USE OF PRODUCTS, FACILITATED SERVICES, AND RESTRICTIONS

  1. Platforms and Portals. As a RootPoint customer, you are granted access to the RootPoint Portal and related Products, Facilitated Services (“Services”) management portals, platforms, and Documentation (collectively, “Portals”) where you may create one or more accounts and subaccounts (“Portal Accounts”) to order, pay for, manage, administer, support, and use our Products and Facilitated Services. You are responsible for maintaining the confidentiality and security of all access credentials, including passwords, to your Portal Accounts and all access to or use of your Portal Accounts. You are responsible for understanding and implementing the roles, access, and permissions you grant to your Portal Accounts, including termination of such access when appropriate. If you become aware of any violation of this Agreement by a user of your Portal Account, you will immediately terminate such user’s access. Administrative Data associated with your Portal Account(s) (about you, your users, End Users and Products) may be hosted in the United States regardless of where you, any End User, any Product account, or any Content related to any Product may be stored or hosted. You are responsible for securing the necessary consents related to the hosting location of your Portal Accounts.
  2. Facilitated Services. RootPoint facilitates services from Third-Party vendors but does not offer these services directly. The services are defined in the Order and/or Scope of Work. You may utilize these Facilitated Services in accordance with your Order or Scope of Work. Excess utilization will be billed at the then current rate in accordance with your Order or Scope of Work. A supplemental invoice will be generated for any excess utilization of Facilitated Services separately from the regular monthly invoice and is due upon receipt.
  3. Restrictions. You may not, nor permit, facilitate or authorize any Third-Party to: (i) use any Product other than as permitted under this Agreement and the applicable Product Terms of Use; (ii) remove or destroy any copyright notices or other proprietary markings or identifications contained on or in any Product or related RootPoint materials; (iii) access or use any Product in any manner that could damage, disable, overburden, or otherwise interfere with or disrupt such Product, any networks, platforms, Portals or security systems; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to extract the source code from any Product, except to the extent that this restriction is expressly prohibited by Applicable Law; (v) copy, modify or create derivative works of any Product; (vi) develop License keys or codes other than those provided by RootPoint, or attempt to alter, defeat or circumvent access restrictions or any other disabling mechanism which may reside in a Product; (vii) assign, sublicense, rent, timeshare, loan, pledge, lease, engage in service bureau activity or otherwise transfer the Products, or directly or indirectly permit any unauthorized Third-Party to use or copy the Product; (viii) disclose or publicize the results of any form of benchmarking, pen-testing or competitive analysis of the Products; (ix) extract portions of the RootPoint Software or firmware for use in other applications; (x) register or remotely manage Product through any management portal other than a RootPoint Portal; or (xi) access any Product for the purpose of competing with RootPoint, using a false identity or false information, for reasons other than a good faith desire to use the Product or otherwise to (1) build a competitive product or service; (2) copy any, or build a product using, similar ideas, features, functions, or graphics of the Product; (3) attempt to circumvent any facilitation of services with Third-Party vendors.
  4. Fair Use and Excessive Use. All access and use of Products and Content must comply with RootPoint’s Fair Use policies, License limitations, and other limitations, many of which are further detailed in the applicable Product Terms of Use. If you exceed a contractual License limit or similar limit, you will be deemed to have executed an Order for additional quantities of the applicable Product and promptly upon RootPoint’s request pay any invoice for excessive use in accordance with RootPoint’s payment terms.
    In general, Fair Use prohibits use that:

    • Harms the Product, Portals, platforms, networks, or other resources of RootPoint or third parties;
    • Results in excessive consumption of resources; and/or
    • Circumvents the intended use of the Product.
  5. Certain Uses Not Supported. Use of the Products is not authorized, will not be supported by us, and any warranties will be void, if the Products are modified in any way or used in a manner for which they are not intended, including but not limited to (i) integrating or combining with software or hardware that is not recommended or approved by us for the Product; (ii) installing a different operating system (OS) on a hardware Device; (iii) using a backup Product in a prolonged virtualized production environment instead of as a backup application (except for a limited testing period or in the event of a documented business continuity event); or (iv) use, access or support of any Product by unauthorized personnel or by those who are not knowledgeable and competent with respect to the Product.
  6. Evaluation/Trial Use. If a Facilitated Service is being used during a trial or evaluation, this Agreement, and the applicable Service Terms of Use (except for the payment obligation) will apply to such authorized evaluation or trial period. We reserve the right to terminate any evaluation or trial use of Products or Facilitated Services at any time in our sole discretion.
  7. Third-Party Applications and Technology. Certain Products or Portals may involve the use of third-party technology, Facilitated Services, or may provide for links and integrations with third-party products or services (“Third- Party Technology”). Information about Third-Party Technology sometimes can be found in a “Read Me,” “About” or similar file in RootPoint Software or Documentation. You understand that Third-Party Technology is not provided by RootPoint and may be subject to a separate agreement between you and the third-party provider. We do not control Third-Party Technology. You enable links or integrations with Third-Party Technology at your own risk. We make no representation or warranty with respect to Third-Party Technology, and we expressly disclaim all liability with respect to your use of any Product or Portal with Third-Party Technology.
  8. Payment Processors. Certain Products allow for access to Third-Party Technology in the form of payment processing companies, through which customers can access credit card and/or banking services, receive payments and make payments (“Payment Processors”). Those Products include, but are not necessarily limited to ConnectBooster, Autotask PSA, Datto Commerce, Kaseya Quote Manager, BNG POS, QuickBooks and Secure Payments. The services of the Payment Processors are a form of Third-Party Technology, as defined above. We reserve the right to change the Payment Processors available through Products at our discretion. You shall be required to accept the terms and conditions of any Payment Processor that processes your payments, and it is your responsibility to confirm if such terms and conditions (and any revisions thereto) are acceptable to you, including charges and fees imposed by the Payment Processors which are in addition to charges that RootPoint imposes. RootPoint reserves the right to pass on all charges imposed by the Payment Processors that the RootPoint incurs on your behalf with respect your use of the Payment Processor’s services which includes any processing charge increases that may be introduced by the Payment Processor during the term of services. The Payment Processors are separate from RootPoint, and RootPoint has no responsibility or control over the Payment Processors.
  9. Open-Source Software. If a Product contains open-source software, those pieces of open-source software are licensed under the open-source license terms as chosen by the provider of the applicable open-source software. Such open-source license terms can be found in either the open source_licenses.txt file accompanying the applicable Product or the Documentation. Open-source license terms may contain additional rights benefiting you and will take precedence over any other agreement between you and RootPoint with respect to the applicable open-source software. If the license for open-source software requires RootPoint to make the open-source software available to you without charge, you may obtain a copy of the relevant software by sending a request to RootPoint’s legal department at MSA-LEGAL@RootPoint.com or 1 Alhambra Plaza, PH Floor, Coral Gables FL 33134.
  10. Licenses to Subscription Services. Licenses for Facilitated Services are non-grantable to Client. Authorized Client users may be granted access to Facilitated Services. End User credentials must be kept confidential and may not be transferred or shared with any other entity or person, including to but not limited to other Users.
  11. Subject to the terms of this Agreement, applicable Product Terms of Use, and payment of Fees, RootPoint grants to the End User during the Committed Service Term of a Subscription Service a non-sublicensable, non-exclusive, revocable, nontransferable right to use the Product as facilitated by RootPoint (a “License”) for the number of License Units as specified in an applicable Order Form. Such use is limited to authorized End Users and will not exceed the number of purchased License Units that have been paid for. An End User’s password or other License credentials must be kept confidential and may not be transferred to or shared with any other entity or person (including but not limited to other Users) or used simultaneously with multiple instances of a Product unless the Product Documentation specifically envisions and allows for such use. Except for one copy made solely for back-up or test purposes, with respect to on-premises Licenses, you may deploy or possess only the number of copies of RootPoint Software as specified in the Order Form, and only in accordance with your License and the Documentation.
  12. Restrictions. You may not, nor permit, facilitate or authorize any third party to: (i) use any Product other than as permitted under this Agreement and the applicable Product Terms of Use; (ii) remove or destroy any copyright notices or other proprietary markings or identifications contained on or in any Product or related RootPoint materials; (iii) access or use any Product in any manner that could damage, disable, overburden, or otherwise interfere with or disrupt such Product, any networks, platforms, Portals or security systems; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to extract the source code from any Product, except to the extent that this restriction is expressly prohibited by Applicable Law; (v) copy, modify or create derivative works of any Product; (vi) develop License keys or codes other than those provided by RootPoint, or attempt to alter, defeat or circumvent access restrictions or any other disabling mechanism which may reside in a Product; (vii) assign, sublicense, rent, timeshare, loan, pledge, lease, engage in service bureau activity or otherwise transfer the Products, or directly or indirectly permit any unauthorized third party to use or copy the Product; (viii) disclose or publicize the results of any form of benchmarking, pen-testing or competitive analysis of the Products; (ix) extract portions of the Software or firmware for use in other applications; (x) register or remotely manage Product through any management portal other than a RootPoint Portal; or (xi) access any Product for the purpose of competing with RootPoint, using a false identity or false information, for reasons other than a good faith desire to use the Product or otherwise to (1) build a competitive product or service; (2) copy any, or build a product using, similar ideas, features, functions, or graphics of the Product.
  13. Limitation on Product Use/Content. The Products and Content may not (i) be used to send any unsolicited commercial email or invitation in violation of any applicable law; (ii) be used to request, collect, store, transmit or disclose any unencrypted personally identifiable data (such as payment card numbers or social security numbers) in violation of any applicable privacy law or regulation; (iii) be deceptive, fraudulent, harmful, abusive, harassing, threatening, indecent, obscene, racially, ethnically, or otherwise objectionable, hateful, tortious, libelous, defamatory, slanderous, or otherwise in violation of Applicable Law; (iv) infringe or misappropriate any Intellectual Property Rights or other rights of any third party; (v) be used in a manner which constitutes or encourages conduct that violates Applicable Law; (vi) contain or be used to transmit or otherwise make available any viruses or similar malicious software that may damage the operation of any computer, network, system or the Products; (vii) violate the terms of any license agreement or other agreement or terms of use to which the End User, you or Content is subject; or (viii) be used to send materials to individuals under the age of majority in his or her place of residence (“Minors”), or to harm Minors in any way, or that would subject us to any Applicable Law governing children’s privacy or otherwise related to protecting Minors.
  14. Certain Uses Not Supported. Use of the Products is not authorized, will not be supported by us, and any warranties will be void, if the Products are modified in any way or used in a manner for which they are not intended, including but not limited to (i) integrating or combining with software or hardware that is not recommended or approved by us for the Product; (ii) installing a different operating system (OS) on a hardware Device; (iii) using a backup Product in a prolonged virtualized production environment instead of as a backup application (except for a limited testing period or in the event of a documented business continuity event); or (iv) use, access or support of any Product by unauthorized personnel or by those who are not knowledgeable and competent with respect to the Product.
  15. Facilitated Services and other Third-Party services may include API use that is governed by their own licenses. Client understands that all credentials must be kept safe and confidential. You are solely responsible for the activity using your API credentials and any access you allow or facilitate through an API, including through your Portal Accounts

3. FEES

  1. Fees are defined in the Order, Quote, or Scope of Work (“SOW”). If there is no SOW or Order, then the work is billable as Time and Materials at the then current rates as determined by RootPoint. There are one-off Services and Labor for Emergencies. Projects are defined by a written Scope of Work. Emergencies, Retainers, and Blocks of Hours may not have a defined Scope of Work.
  2. Client authorizes RootPoint to charge Client for all fees owed to RootPoint using the payment method client has on file with RootPoint. The Client must keep all billing account information current to ensure correct and timely payments of the amount due.
  3. Block Of Hours. A block of hours is due when the Order is placed. Blocks hours are due upon invoicing and are considered prepaid labor without a defined Scope of Work, typically for ad-hoc work. Blocks of Hours will automatically renew and complete a new order when the Block of Time expires. Client authorizes a new block of hours when no more time is available in the existing Block of Hours unless Client puts in writing that the Block of Hours is nonrenewable in the Order. Blocks of Hours do not have a guarantee on availability to perform work.
  4. Changes in Fees. The amount of the Products and Facilitated Services may change by adding users, devices, or adding additional services, Circumvention Fees, Delayed Payment Fees, Direct Hire Fees, Licensing Fees, Late Payment Fees. Offboarding Fees, Onboarding Fees, Reactivation Fees, changes to Scope of Work, and delays caused by the Client and Third Parties.
  5. Circumvention Fee. If Client hires, engages, pays, or contracts directly with a Facilitated Services Vendor or otherwise circumvents RootPoint, then it will immediately pay a Facilitated Services Vendor Circumvention Fee. This fee is the full value of the services for the entirety of the services agreement that the Client engages the Third-Party. This fee shall be paid by wire transfer on a prepaid basis and in full. Client agrees to share with RootPoint all accounting records necessary to facilitate the validation of the fee. Client also agrees to bear all litigation or arbitration costs if RootPoint must litigate or arbitrate with the Facilitated Services Vendor. Any increases in the cost of the contract during the duration of the contract with Facilitated Services Vendor shall become immediately due and paid by wire transfer for the remaining portion of the contract. If a new contract is signed with Facilitated Services Vendor, then that contract will likewise be treated the same under this Agreement and a new Circumvention Fee will be immediately paid. Use of any related companies, organizations, or staff to client are used to engage, hire, pay or contract with Facilitated Services Vendor or otherwise circumvent RootPoint is considered a circumvention and is also subject to the Circumvention Fee.
  6. Collection Fees. All amounts payable by you will be made without setoff or counterclaim, and without any deduction or withholding. Any payments more than thirty (30) days overdue are considered late, and we may charge interest at the rate of 2.0% per month (or the highest rate permitted by law) on late payments. If we are unable to collect any amount owed, we may take any other steps deemed necessary to collect Fees, and you will be responsible for all our incurred costs such as collection expenses, court costs, arbitration fees, and attorneys’ fees. Furthermore, in the event of non-payment, following notice of such non-payment, we may suspend or terminate access to any RootPoint Products and Content as well as the right to continue to purchase new Products until payment is made in full.
  7. Credit Card Surcharge Fee. Client authorizes RootPoint to charge a credit card surcharge of 3% for payments made by credit card.
  8. Delayed Payment Fee. If payments are delayed by more than 4 calendar days then a Delayed Payment Fee, on the open invoice and/or balance, of 5% (or the highest rate permitted by law) or $50 is due, whichever is larger.
  9. Monthly Service Fees. Monthly Service Fees are billed in advance and due on the first calendar day of each month.
  10. Offboarding Fee. Client authorizes RootPoint to charge an offboarding fee equivalent to two months of managed services should Client terminate services. However, the Client will remain obligated to pay for any Facilitated Services through the length of the agreed upon service term found in the Order or Scope of Work. Final documentation will not be turned over until the offboarding fee has been paid and there is no outstanding balance on the Client account.
  11. Onboarding Fee. Client authorizes RootPoint to charge an onboarding fee at RootPoint’s then current rates.
  12. Payment Methods. All payments shall be by credit card, Wire Transfer or ACH. Government entities may pay by check. A surcharge of $25 per check may be charged for any payments made by check.
  13. Project Fees. Project Fees are due as per the Order or Scope of Work
  14. Reactivation Fee. A reactivation fee may be charged which is equal to the amount of the then current Monthly Fee as a reactivation fee.
  15. A retainer is an amount of money billed in advance for labor, materials and facilitated services without a defined Scope of Work.
  16. Returned Payment Fee. Client authorizes RootPoint to charge a Returned Payment fee of 5% of the payment (or the highest rate permitted by law) or $50 is due, whichever is larger. Payment must be made to bring Client current immediately and by an irrevocable method such as Wire Transfer.
  17. Right to Change Fees. RootPoint reserves the right to change the rate at any time. The Client can cancel the individual service if the rate for the entire individual Facilitated Service does not change by more than 15% in one calendar year.
  18. Scope Of Work Fees. A Scope of Work defines the fees and payment schedule and milestones for any work defined in the Scope of Work.
  19. Setup Fee. If Client provides RootPoint with hardware and wants said hardware entered into the managed services contract then RootPoint has the right to charge a Setup Fee, at RootPoint’s sole discretion, with pricing determined by RootPoint.
  20. Time and Material. Time and Material (“T&M”) is a post billed labor and materials agreement and are due upon invoicing. There may not be an order placed by Client for the work as this is typically emergency labor or for when a good estimate of time cannot be made based on the work type or information provided.
  21. Unpaid Balances. For balances unpaid after 30 days then any or all Labor, Products, and/or Facilitated, may be suspended. Data may be deleted after 60 days of nonpayment. Confidential information, including information necessary to move to a new service provider or to internal staff may be withheld for nonpayment.

4. ORDERS & PAYMENT

  1. When you place an order for a Product, Labor, or Facilitated Services, you must electronically accept via the RootPoint portal or sign and email back the quote to your Account Manager.
  2. All hardware purchases must be paid on order. Ownership changes hands at the time of payment and final delivery to Client specified location unless otherwise specified in the Order agreement. Hardware As a Service (“HAAS”) does not change ownership of the equipment from RootPoint to any other party. Business Continuity appliances continue to be owned by RootPoint and do not change ownership. RootPoint owned hardware shall be treated with utmost care by the Client to avoid damage.
  3. Order Acceptance. Your receipt of an Order Confirmation does not signify acceptance of your Order, nor does it constitute our offer to sell. We may at any time after receipt of your Order, accept or decline your Order, or elect to supply less than the quantity you ordered, for any reason. We may require additional verifications or information before accepting any Order. Your Order will be deemed accepted by us upon our delivery of Products, or our written acceptance of the Order. Any delivery date we provide is an estimate only and we will not be liable for failure to meet any stated delivery date. All sales are subject to our then-current, written return policies. Any pricing errors or unintentional misrepresentations of Product availability or features (“Errors”) will be corrected by RootPoint as soon as practical following delivery. We reserve the right to revoke any quote, cancel any Order or adjust amounts due after our discovery of relevant Errors. Our sole obligation if we cancel an order due to Error will be to refund any amount already paid for any portion of the Order not accepted by Client.
  4. Order Term, License Amounts and Automatic Renewal. The terms of the Service Subscription and License quantities are indicated on the applicable Order. The Service Subscription term is defined by a number of consecutive months or years (a “Committed Service Term”). Certain pricing and discounts may be available only when purchases are made with a Committed Service Term of a specific length. You agree to pay Service Subscription fees for the entire Committed Service Term. If you terminate Service at any time during a Committed Service Term for any reason other than our breach which has not been timely cured, a lump sum payment (equal to 100% of the monthly unpaid Service Subscription fee times the number of months remaining in the Committed Service Term less any amounts already paid) will be due immediately and charged to your preferred payment method. Unless otherwise agreed to by RootPoint, Committed Service Terms set forth in Orders will automatically renew for additional Committed Service Terms equal in length to the expiring Committed Service Term unless either party gives notice to the other of non-renewal at least thirty (30) days prior to the end of the relevant Committed Service Term. License quantities may be increased during a Committed Service Term, but not decreased.
  5. Additions Made During Committed Service Term. A Committed Service Term applies to the initial Facilitated Services and/or Licenses in a Subscription and to any Facilitated Services and/or Licenses added thereafter to the Service Subscription. Licenses, including those added after the original Activation Date, may not be decreased during the relevant Committed Service Term and all Licenses in a Service Subscription terminate on the same date. Any optional or add-on features added after the start of the Service Subscription will also co-terminate with the original Service Subscription and may not be decreased during the relevant Committed Service Term.
  6. Shipment; Title; Risk of Loss. For all shipments of hardware, we shall designate the carrier and ship pursuant to our standard shipping practices unless otherwise specified by you and agreed to by us in writing. You must provide us with written notice within five (5) calendar days of delivery of any non-conformity with the Order, for example, delivery of the wrong Product or incorrect quantities. All new orders for hardware or other physical Products will be shipped from us with freight prepaid and billed to you. Title and risk of loss to such physical Products will pass to you upon the shipment leaving our dock. In the event of delivery by RootPoint staff then the title will transfer upon delivery. All equipment must be prepaid before shipment.
  7. Shipments Made to Certain Jurisdictions. You may be subject to import duties, withholdings, and other taxes, which are levied when the Product arrives at the ship-to location. Any charges for customs clearance are your responsibility. Since customs policies vary from country to country, you should contact the customs office in the country where you have us ship Products to get more information. You are considered the importer of record and must comply with all laws and regulations of such jurisdiction.
  8. Taxes. You will pay and be solely liable for all taxes including sales, use, excise, withholding and any other taxes, duties, or charges with respect to our sale of the Products to you, but excluding taxes based on our net income or gross receipts and taxes from which you are exempt by law as shown by a valid tax exemption certificate. You agree to indemnify and hold us harmless in the event we are required to pay such taxes, duties, or other charges for which you are responsible.
  9. Future Functionality. You agree that your obligations with respect to a Product Order or Service Subscription are not contingent upon the delivery of any future functionality or features that may have been mentioned by us, either orally or in writing.

5. FACILITATED THIRD-PARTY SERVICES

  1. Use of Third-Party Services. RootPoint uses Third-Party Services in the delivery of Service including Email, Cybersecurity, Governmental Regulatory Compliance (“GRC”), Logging, Remote Monitoring and Management (“RMM”), Backup, Restoration, Business Continuity, Vulnerability Scanning, Pen Testing, Internet, Voice Services, and others as needed. RootPoint facilitates those services but does not provide them directly. RootPoint is not responsible for any acts, omissions, or errors from Third-Parties.
  2. Client Rights for Facilitated Services. Client’s rights are governed by the Third-Party vendor’s End User License Agreement (“EULA”) or Terms and Conditions (“T&C”). The Third Party EULAs, Terms and Conditions, and Privacy Policies may be found here in Section 25 of this Agreement.
  3. Review of Third-Party EULA and T&C. RootPoint instructs Client to review the policies of the third-party vendors.
  4. Waiver of Right to sue. Client waives the right to litigate with RootPoint for any failure of a third-party vendors and holds RootPoint harmless.

6. TERM OF AGREEMENT

  1. The term of this agreement is evergreen.
  2. “Out Clause”. A sixty (60) day Out clause for the agreement is available that will start 60 days after the conclusion of the month in which it was requested. Labor only will be cancellable and all Facilitated Services are due through the end of corresponding contract with third-party. This allows for sufficient time to offboard the Client. Payment for any remaining Facilitated Services is still due until those agreements are concluded.
  3. Orders and Scopes of Work. All Orders and Scopes of Work have their own terms and termination clauses which have their own expiration dates and renewals.
  4. Termination of MSA. The MSA may be terminated but that does not terminate any Orders, Service Orders, or SOWs that have been executed and payments for those which have been executed. By default, the terms, and conditions of the MSA remain in effect until all subsequent Orders, Service Agreements, and Scopes of Work have been concluded.

7. INTELLECTUAL PROPERTY

  1. Retention of Authorship. All writing, work of authorship, and work product created by RootPoint for the client, referred to as “Provider Work” is owned by RootPoint.
  2. License Grant. For any Intellectual Property owned by RootPoint that resides with Client, RootPoint grants a non-exclusive right to use by Client. Facilitated Third Party vendors are granted a non-exclusive right in order to deliver Facilitated Services to Client. The license automatically expires upon termination of the related Order, Scope of Work, or MSA, whichever is last. This grant by RootPoint to Client does not allow Client to share or disseminate Provider Work to third parties without the exclusive written approval by RootPoint which may be revoked at any time and all Provider Work returned to RootPoint.
  3. Facilitated Services. RootPoint may provide equipment, software, and/or Facilitated Services to complete the Order or Scope of Work. The ownership of the Hardware, Software, and Licenses remains with RootPoint. RootPoint may switch out hardware, software, and/or licenses at its sole discretion. All such hardware, software, licenses, backups, and data shall be removed when the agreement is terminated at the Client’s expense.

8. NON-DISCLOSURE AND CONFIDENTIALITY

  1. Application of this Section. This section applies to Confidential Information of one party (the “Discloser”) that is made known to the other party (the “Recipient”) through activities under this Agreement. Note that Content uploaded through the Products requires special confidentiality provisions due to the features of the Products, and such special provisions may be described in the Product Terms of Use if applicable. Those provisions related to Content always limit RootPoint’s use of Content (including disclosure) to only that which RootPoint needs to provide and support the applicable Product, and as otherwise required by Applicable Law.
  2. Obligations. The Recipient will (i) maintain the confidentiality of the Confidential Information of the Discloser (and that of any third parties to which either party has access as a result of this Agreement); (ii) hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party except to the extent necessary to perform its obligations under this Agreement (iii) use the same care to prevent protect the Confidential Information of the Discloser as it employs with respect to its own information of a similar nature, but in no event less than a reasonable standard of care; (iv) use the Confidential Information of the Discloser solely for the purpose of performing its obligations under this Agreement; and (v) as reasonably feasible, promptly return, or provide a copy of Confidential Information upon the request of the Discloser.
  3. Product Information as Confidential. The Products, including their structure, organization, and source code, are comprised of commercially valuable assets belonging to RootPoint or Facilitated Service Providers, the development or acquisition of which required the investment of substantial time, effort, and cost. The Products may contain trade secrets. Accordingly, you hereby agree to use the highest degree of care to maintain the confidentiality of the Products.
  4. Disclosure of Confidential Information. Recipient may disclose Confidential Information of the Discloser to Recipient’s employees, officers, agents, subcontractors, and independent contractors (collectively “Representatives”) who have: (i) a need to know such Confidential Information in order to perform their duties; and (ii) a legally binding duty to protect the Confidential Information. Recipient assumes full responsibility for the acts and omissions of its Representatives with respect to such Confidential Information.
  5. Disclosures Required by Law. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Recipient, where legally permissible in the reasonable judgment of Recipient’s counsel, will first have given written notice to Discloser in order to allow Discloser to seek, at its sole cost and expense, a protective order or other remedy to limit such disclosure.
  6. Notification. Except for any disclosure permitted under this Section, in the event of any disclosure or loss of Confidential Information, Recipient will notify the Discloser as soon as reasonably possible after learning of the disclosure.
  7. Injunctive Relief. Each party acknowledges that Recipient’s breach of this Section may cause immediate and irreparable injury to Discloser, and in the event of such breach, Discloser will be entitled to seek and obtain injunctive relief to the extent provided by a court of applicable jurisdiction, without bond or other security, and to any and all other remedies available at law or in equity.
  8. Return of Confidential Information. Unless expressly authorized to retain Discloser’s Confidential Information, Recipient will promptly return or use commercially reasonable efforts to destroy Discloser’s Confidential Information upon request or upon termination of this Agreement, provided that Recipient may (a) retain in its legal files one copy of the Confidential Information for archival purposes and (b) retain copies stored in automated computer backup systems; provided, however, that any such documents and records retained pursuant to clause (a) or (b) shall remain subject to the terms of this Agreement for as long as they are so maintained.

9. TREATMENT OF INFORMATION AND DATA

  1. Customer Content. You hereby represent and warrant that: (i) you have sufficient rights and all required third-party consents, permissions or licenses in and to the Content as may be necessary and appropriate for use of the Content with the Product; (ii) you authorize us to access and interact with the Products to retrieve and process Content; and (iii) you grant RootPoint a limited, worldwide, royalty-free, non-exclusive, assignable license to copy, host, record, view, reformat, disclose, transmit, display and otherwise use the Content as necessary or desired, in each case solely for the purposes of providing the Products and as otherwise necessary for RootPoint to fulfill its obligations and exercise its rights under this Agreement including applicable Product Terms of Use and Orders. You or the End-User (as applicable) is responsible for the collection, accuracy, quality, completeness and legality of the Content and the means by which the End-User acquired rights to the Content for use with the Product, and RootPoint will not be responsible or liable for the unauthorized access to, alteration of, or deletion, correction, destruction, corruption, damage, loss or failure to secure or store Customer Content. You bear sole responsibility for adequately controlling, processing, storing, and backing up Customer Content.
  2. Rights in the Content. Except for the limited license granted hereunder, you retain all existing rights in and to Content. RootPoint will use and process the Content as necessary to Facilitate Services and will not otherwise access Content other than as permitted under this Agreement, the applicable Terms of Use, as or as authorized by you for support.
  3. Personal Information. Products may be configured to designate the geographic region where Content associated with a Product is stored. If a Product is configured to store content in the United States and is used to process personal information of California consumers, under the California Consumer Privacy Act of 2018, as amended, and the final regulations thereunder (collectively the “CCPA”), we are a “service provider” with respect to the personal information of California consumers we process. We will not sell such personal information and will not retain, use, or disclose such personal information for any purpose other than for the purpose described in this Agreement, the applicable Product Terms of Use, or as otherwise permitted by the CCPA or applicable law.
  4. Security. We use physical, technical, and administrative safeguards designed to help secure the Products and Content under our control or with Facilitated Services Provider against accidental or unauthorized loss, access, or disclosure. However, no system of data transmission, storage or retrieval can be made entirely impenetrable and despite the measures employed, the Products and Content are not guaranteed against all security threats or other vulnerabilities, and you use the Products with all Content at your own risk. You are responsible for the proper configuration and maintenance of physical, administrative, and technical safeguards as they relate to access and use of the Product, accounts, and Content. In no event will we be responsible, nor will we have any liability, for physical, administrative, or technical controls related to the Product or Content (including without limitation Personal Information) that you control, including but not limited to access credentials (including passwords), network connectivity and internet connectivity. You agree to (i) change your passwords and other access credentials to Products and Portal Accounts in accordance with our Best Practices for credentials and immediately upon becoming aware of any unauthorized access to, or use of, your Products or Portal Account(s) or any other compromise involving Products or your Portal Account(s); and (ii) promptly apply any updates, upgrades, modifications or other Enhancements that RootPoint determines is necessary or appropriate to maintain the security, confidentiality, integrity, availability or performance of the Product.
  5. Feedback. If you provide us with reports, comments, suggestions, ideas or other feedback regarding the Products or our business, whether written or oral (collectively “Feedback”), you do so without any expectation of compensation. You hereby grant us a worldwide, irrevocable, transferable, perpetual, royalty-free right and license to use the Feedback to improve the Products, develop new Products and for any other purpose, including in all media now known and later developed. The provision of Feedback is strictly voluntary, and we are not required to hold it in confidence.
  6. Aggregate Data. Notwithstanding any other provision in this Agreement or otherwise, we may evaluate and process use of Products and Content in an aggregated and anonymous manner, meaning in such a way that the individual is not or no longer identified or identifiable (referred to as “Aggregate Data”). We may use and share such Aggregate Data to improve the Products, develop new products, understand and/or analyze usage, demand, and general industry trends, develop, and publish white papers, reports, and databases summarizing the foregoing, and generally for any purpose related to our business. We retain all Intellectual Property Rights in Aggregate Data. For clarity, Aggregate Data does not include personally identifiable information or information that can identify any individual.
  7. Administrative Data. Administrative Data includes operational data and telemetry concerning use of the Products and Portals, such as information that servers record relating to the access and use of the Products and Portals. Administrative may include IP addresses, authentication tokens, machine identifications, access logs, device settings and Portal settings. Administrative Data is processed by us to provide and operate the Products and Portals, bill, and invoice you, measure customer experience and adoption, monitor security, conduct investigations, develop new products and operate and improve our business, and you agree that we may use such Administrative Data for any such purpose.

10. NON-CIRCUMVENTION

  1. Non-Solicitation of Staff. Client agrees not to solicit, induce, employ, or contract RootPoint staff or former staff for a period of one (1) year after the termination of their employment with RootPoint.
  2. Direct Hire Fee. If Client hires or engages a RootPoint staff member it shall pay a Direct Hire Fee at the time of hiring or engagement with that staff member. The Direct Hire Fee is the greater of a) the one-year base salary of the staff member at the time of separation with RootPoint or b) the expected total compensation upon hiring by Client, plus the replacement recruiting fee charged by RootPoint’s outside recruitment company at the time of the employment by Client.
  3. Non-Circumvention of Facilitated Vendors. Client agrees not to solicit, induce, employ, or contract directly with any Facilitated Services vendors used at any time during this Master Services Agreement. If Facilitated Vendor contacts Client to solicit or engage in a sales process then Client shall immediately notify RootPoint in writing via email at MSA-LEGAL@RootPoint.com and notify Facilitated Services Vendor that Client is unable to buy Services directly from Facilitated Services Vendor and to contact RootPoint directly. If Client signs an agreement with a Facilitated Services Vendor, then a copy of that agreement and all accounting records is due to RootPoint upon request.

11. CLIENT COVENANTS AND OBLIGATIONS

  1. Client Obligations. Client has obligations to RootPoint to assist in delivery of Services. The Client must provide adequate and timely access to facilities, staff, third-parties, systems, equipment, software, licensing and provide a suitable work environment for RootPoint staff and third parties delivering Facilitated Services. This may include assigning a point person, project manager, or similar person as an interface.
  2. Simple Procedures. Client agrees to perform simple procedures such as reboots, granting remote access, powering on and off equipment, and plugging in peripherals.
  3. Remote Access. Client is responsible for providing remote access to RootPoint to Covered Equipment and Systems. The Client must maintain an environment suitable for the equipment including cooling, electrical, surge protection, and network access.
  4. Proper Licensing. Client agrees to maintain proper licensing on all devices, software, services, and systems in use. The Client will not use software not supported by the manufacturer. Client agrees to maintain warranties and maintenance agreements with response times that provide response and repair times that meet the business continuity requirements of the Client.
  5. Obsolete Equipment. RootPoint may designate equipment obsolete when the equipment reached End of Life, End of Sale, or End of Support by the manufacturer.
  6. Hold Harmless. Client agrees to hold RootPoint harmless for any damages caused by the use of unsupported hardware, software, licenses, or systems, or Facilitated Services.
  7. Security Features. RootPoint may implement security features, but it is ultimately up to the Client to ensure security of the systems. Client agrees that firewalls, encryption both on data at rest and in transit, and security software shall be installed. Logging shall be put in place as well as backups of the end user devices, servers, network equipment configurations, and cloud data.
  8. Proper Security Training. Client agrees that Client Staff will be properly trained in security awareness and that Client Staff and third-parties shall not circumvent security features and systems. Client also agrees to maintain the physical security of the systems and information, especially with regard to any Governmental, Regulatory, and Compliance (“GRC”) requirements, legal requirements, and insurance requirements. Third-Parties shall have appropriate access granted by RootPoint and all users and systems, including both Client and Third-Party systems, will have Role Based Access Controls (“RBAC”) enforced.
  9. Unauthorized Access. RootPoint is not responsible for any unauthorized access to the Client’s systems. If Third-Party services are included, then RootPoint will Facilitate their services and make all commercially reasonable efforts to implement those services. Client agrees that no security system can guarantee complete protection. Client agrees to hold RootPoint harmless from loss, injury, or damage to the Client caused by Malicious activity or System Failure.
  10. RootPoint may Facilitate Backup and Recovery, and Business Continuity from Third Parties. It is the Client’s responsibility to verify the backups are regularly made and can be restored. RootPoint is not liable for any data loss due to a backup failure or restoration issues.
  11. Criminal Activity. Client responsible or liable for any criminal activity by hackers, phishers, threat actors, nation state actors, inside threats or third parties. If any ransomware payment is to be made it is the responsibility of the Client to make the payment and hold RootPoint harmless for any activity affecting security or operations.
  12. Endpoint Protection. Client agrees to ensure proper endpoint protection including antivirus, threat detection and response, and all similar services are in place, updated and properly licensed. RootPoint is not responsible for harm caused by viruses, malware, or threat actors. Client agrees to pay any fees associated with the services or rebuilding of systems due to malicious activity.
  13. Password Management. RootPoint may facilitate password management services to the client by third parties. Client is responsible for the proper use of the password management system. The Client will not keep passwords anywhere outside of the password management system. Client holds RootPoint harmless for any loss or damage due to unauthorized access, non-use, or misuse of the password management system.
  14. Maintenance Windows. Client agrees to allow regular and emergency maintenance windows as required to implement proper system maintenance. Some highly rated CVEs must be patched immediately and will cause business interruption.
  15. Business Associate Agreements for Personal Health Information Within the United States. If Client is a Covered Entity or Business Associate as defined under the United States Health Insurance Portability and Accountability Act (HIPAA), and if you intend to transfer Content to RootPoint or Facilitated Services vendors that constitutes personal health information under HIPAA, you agree to request that the Covered Entity or Business Associate enter into RootPoint’s standard Business Associate Agreement with respect to such Content.
  16. Contact Information. During the Term of this Agreement, you must maintain current and accurate contact information within all Portal Accounts for purposes of facilitating communications and notices to you, including those related to billing, security, maintenance, and updates. You are required to register and set up each Product account and Service Subscription, as applicable, in accordance with the Product Specifications. If a Product is not properly registered in a current paid Service Subscription, we have no obligation to allow access to or use of the Product, or to provide any related Facilitated Service. You agree that from time to time, RootPoint may send you product-related communications addressed to the contact which you have provided.
  17. Training. You agree to participate in any training programs as may be required by us from time to time in order to maintain your status as a RootPoint customer. Our training provides instruction on the general use and functionality of the Products but is not the same, and you should not rely on it, as advice in specific technical support situations. You acknowledge and agree that we will not be liable for any statements or omissions made during training or contained in training materials.
  18. Technical Support. You agree that RootPoint is only responsible for providing technical support to those people or entities that purchase directly from RootPoint, and only where a Product is in effect and the applicable Fees have been paid. You agree to cooperate in good faith to implement our suggestions and solutions, and assist us in maintenance and troubleshooting issues, with respect to support of the Products, Labor, and Facilitated Services. We may rely on the instructions and authorizations given to us by any of your personnel with access to a Product, and we will have no obligation to inform any other of your personnel of the same. You have the right to restrict technical support or services to any of your users or likewise appoint a Point of Contact through which technical support may be granted for End Users or third parties.

12. PROVIDER REPRESENTATION

  1. RootPoint does not guarantee Products, Labor, nor Facilitated Services are error free, and that they may not be completely secure. There are inherent risks associated with connecting to the internet, which may result in business interruption or loss or harm.
  2. The remedy available to the Client should RootPoint breach the warranty and is unable to correct the issue that caused the breach. The remedy is limited to a refund of one month of prepaid fees for the individual deficient service and for the client to terminate that individual service.
  3. Right to Change Products and Documentation. We may make changes to Managed Services and Documentation through updates and upgrades (“Enhancements”). Enhancements may be provided at no additional charge, or they may be offered as options that may be added to a Service Subscription for an additional fee. We reserve the right to add new Products, Facilitated Services, Enhancements and to replace or discontinue Products or Enhancements at any time. We will use commercially reasonable efforts to provide you with notice of any material changes.
  4. Right to Interact with Products. You agree that we may, and you hereby authorize us, at any time and from time to time, to interact remotely with deployed Product in order to test, troubleshoot, support, or update such Product, or analyze use of or modify the Product or the environment in which it operates.
  5. Suspension and Termination. In the event we reasonably believe any Product use, configuration of Product or Content: (i) violates any of the restrictions in the foregoing sections; (ii) may disrupt or threaten the operation or security of any Product, data, Content, computer, network, system of you, us or any third-party; or (iii) may otherwise subject us or a third-party to liability or damage, we reserve the right to suspend services or disable access to the Product, Portal, platform or Content. We may also take such action pursuant to the Digital Millennium Copyright Act and/or as required to comply with Applicable Law. We will use reasonable efforts to contact you prior to taking such action. Notwithstanding the foregoing, we may suspend a Product or restrict access to Product or Content without prior notice in an emergency or as necessary to comply with Applicable Law or protect against liability or damage as described herein.
  6. Breach of Your Obligations. You agree to immediately notify us of any unauthorized use, copying, or disclosure of the Product or Content of which you become aware and agree to immediately take such actions as are necessary to end and prevent any such use, copying, or disclosure. You acknowledge and agree that any breach of this Section may cause immediate and irreparable injury to us or to third-parties, and in such event, we may seek and obtain injunctive relief, without bond or other security, in addition to other remedies available at law and in equity.
  7. Compromise of Your Portal Account or Access Credentials. You agree to (i) use reasonable efforts to prevent and terminate any unauthorized access to, or use of, your Portal Account(s) or any access credentials to your Portal Account(s); and (ii) notify RootPoint immediately of any known or suspected unauthorized access to, or use of, your Portal Account(s) or any access credentials to your Portal Account(s). RootPoint will not be liable for any loss incurred as a result of any unauthorized access to, or use of, your Portal Account(s) or any access credentials to your Portal Account(s). RootPoint reserves the right to change, suspend, remove, disable, or impose access restrictions on any access credentials to your Portal Account(s) at any time without notice to you. You agree to cooperate with RootPoint by providing any information that is reasonably requested by or on behalf of RootPoint to investigate and resolve any unauthorized access to, or use of, your Portal Account(s) or any access credentials to your Portal Account(s), or any other compromise involving your Portal Account(s).
  8. Third-Party Providers. Third party providers may access Client data in their delivery of Facilitated Services. Any exchange of data is between the client and the Third-Party provider and is subject to the terms and conditions of the Third-Party Provider. RootPoint does not warrant any Third-Party Services Facilitated by RootPoint or any utilized by Client, and is not liable for any loss or damages incurred through the use of Third-Party Services.

13. COMPLIANCE WITH LAWS

  1. Industries and Jurisdictions. RootPoint has clients in many industries and jurisdictions. Some industries are bound by specific regulations and requirements. Some of these industry and legal requirements include HIPAA, GLBA, FINRA, PCI-DSS, ISO, ITAR, CMMC, and jurisdictional requirements include those such as GDPR and CCPA.
  2. Data Processing Agreement. If Client is subject to any of these or other regulations, then RootPoint will have a separate Data Processing Agreement (“DPA”) in place with Client. It is the responsibility of Client to make RootPoint aware of the Regulated Data. Unless a Data Processing Agreement is in place then RootPoint is not responsible for Compliance with any laws that the Client must be compliant with.

14. DISPUTE RESOLUTION

  1. All disputes arising out of or in connection with this Agreement shall be finally resolved by arbitration in according with the rules of the American Arbitration Association with the venue in Miami-Dade County in the State of Florida, by one or more Arbitrators appointed in accordance with said rules. All such arbitration awards shall be binding on all parties and enforceable by law. The parties further agree to carry out the terms of any arbitration award without delay and shall be deemed to have waived their right to any form of alternative recourse by or through any other means, insofar as such waiver can validly be made. Each of the parties named in an arbitration proceeding and/or required to appear under such a proceeding, unless otherwise agreed, shall be responsible for its own legal expenses. The prior sentence notwithstanding, any Party adjudged by the arbitrator to be in material breach of this Agreement shall compensate in full the aggrieved party, its successors and/or assigns, for the total remuneration received as a result of business conducted with the Parties covered by this Agreement, plus, subject to the determination of the arbitrator all of its arbitration costs, legal expenses, expert witness fees, and other charges and damages.
  2. Disputes shall be resolved by arbitration. The Arbitrator will be mutually agreed upon and have experience in technology law and contract law. Arbitration decision is final. The losing party shall pay the legal and arbitration fees.
  3. The Arbitration shall take place in Miami, FL.
  4. Governing Law. Governing Law shall be governed by the laws of the State of Florida in Miami-Dade County.
  5. Complaint Period. There is a two-month complaint period for which a complaint may be lodged. Any complaints after two months shall not be addressed.
  6. Client represents, warrants, and covenants to RootPoint that it has the authority, corporate or otherwise, and the right to enter into this Agreement and otherwise comply with its obligations under this Agreement, and that such Party’s obligations under this Agreement are not in conflict with any obligations to any other Party hereto or any third parties.

15. INDEMNIFICATION

  1. Indemnification by RootPoint. We agree to defend you from and against third-party claims that a Product in the form supplied to you under this Agreement infringes or misappropriates a third party’s patent, copyright or trademark rights in the United States and we will indemnify and hold you harmless from all damages, costs, and similar liabilities ordered by a court or agreed upon by RootPoint in settlement in connection with any such claim. Our indemnification obligations will not apply to (i) claims of infringement to the extent based on your combination of the Product with other products, services, software or marks if the infringement could have been avoided by the use of such Product not in such combination; (ii) any modifications to the Product not made by us; (iii) any damages incurred as a result of your failure to use any update to the Product we provide; or (iv) use of a Product in a manner that does not conform to its Specifications (these exceptions (i) through (iv) collectively will be referred to as “IP Exclusions”). If we determine that a Product is or may be subject to an infringement claim, we may, at our option: (1) procure for you the right to continue using or distributing the Product in accordance with this Agreement or (2) replace or modify the Product so it becomes non-infringing. If we determine that neither of these options is commercially practicable, we may terminate this Agreement or your ability to further use or Product, labor, and/or Facilitated Services upon written notice to you. This Section represents your sole and exclusive remedy and RootPoint’s sole and exclusive liability for any infringement claims based on the Products.
  2. Your Indemnification of RootPoint. You agree to defend us, our licensors and Affiliates, and the officers, directors, employees and representatives of each of them (each a “RootPoint Indemnified Party”), from and against all damages and costs incurred as a result of a third-party claim and you will indemnify and hold all RootPoint Indemnified Parties harmless from all damages, costs, and similar liabilities in connection with any such claim, to the extent the claim arises out of (i) your breach of this Agreement; (ii) your negligence or other acts or omissions resulting, in whole or in part, in a third party claim being asserted against us; (iii) any of the IP Exclusions referenced in subsection (a), above; (iv) your failure to cause an End User to agree to the applicable End User Terms or your actions in excess of the authority granted to you by any End User; (v) your failure to secure Content, any personally identifiable information or Confidential Information in a reasonable manner (such as, for example, your failure to encrypt in transit or at rest when available or properly protect passwords or other access credentials); and (vi) except for claims of infringement or misappropriation for which we are responsible under subsection (a) above, a claim brought by any of your End Users (both organizations or individuals) arising out of or related to the End User’s relationship with you.
  3. Process. The foregoing indemnification obligations are conditioned on any of the indemnified parties: (i) notifying the indemnifying party promptly in writing of such action; (ii) reasonably cooperating and assisting in such defense; and (iii) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
  4. Hold Harmless by RootPoint. RootPoint will hold harmless Client for any damages or losses caused by the action of RootPoint. This may include errors, omissions, negligent acts, or misrepresentation.

16. LIMITATION OF LIABILITY

  1. Mutual Warranties. Each party represents and warrants that (i) it is duly organized, validly existing and in good standing under the laws of its place of incorporation or formation; (ii) it has the authority to enter into this Agreement and to perform its obligations and grant the rights and licenses provided herein; and (iii) by entering into this Agreement it is not in violation of any previous agreement or obligation between it and any third party.
  2. LIMIT ON WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, DATA SECURITY, OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WE DO NOT WARRANT THAT THE PRODUCTS, LABOR, AND/OR FACILITATED SERVICES WILL MEET ANY END USER, MANAGED SERVICE PROVIDER OR OTHER REQUIREMENTS OR THAT THE OPERATION OF ANY PRODUCT WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE, FREE OF HARMFUL COMPONENTS OR THAT ALL ERRORS WILL BE CORRECTED. PRODUCTS ARE TOOLS FOR ASSISTING CUSTOMERS RUN AND PROTECT THEIR BUSINESSES OR THOSE OF THEIR CLIENTS, AND ARE NOT A SUBSTITUTION FOR APPROPRIATE INSURANCE, SUCH AS CYBER LIABILITY OR PROFESSIONAL LIABILITY INSURANCE. PRODUCTS, LABOR, AND FACILITATED SERVICES ARE NOT DESIGNED OR INTENDED FOR USE IN LIFE DEPENDENT OR HAZARDOUS ENVIRONMENTS REQUIRING FAIL SAFE PERFORMANCE SUCH AS THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS WHERE THE FAILURE OF THE PRODUCT COULD LEAD TO DEATH, PERSONAL INJURY, PHYSICAL DAMAGE OR ENVIRONMENTAL DAMAGE. EXCEPT FOR REPRESENTATIONS SPECIFICALLY MADE BY US IN WRITING, WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT ANY PRODUCT, LABOR AND/OR FACILITATED SERVICES COMPLIANCE WITH LAWS AND REGULATIONS THAT ARE SPECIFICALLY APPLICABLE TO ANY END USER OR INDUSTRY AND DISCLAIM ALL LIABILITY ASSOCIATED THEREWITH. THE PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD-PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE FOR ANY DAMAGES WHATSOEVER.
  3. No Professional Advice and Revenue Guarantee. Certain of our Products may provide a platform and framework through which you can calculate taxes, track compliance to regulations, and aid in accounting obligations. HOWEVER, YOU UNDERSTAND THAT THE PRODUCTS ARE NOT INTENDED TO PROVIDE PROFESSIONAL ADVICE, AND ARE NOT A SUBSTITUTE FOR LEGAL ACCOUNTING, FINANCIAL, COMPLIANCE, OR OTHER FORMS OF ADVISORS AND EXPERTS. Results, reports, sample agreements, templates and other information generated by or provided through our Products are opinion and must be reviewed in consultation with your professional advisors. We make no promise or guarantee that you will obtain or receive any minimum revenue or profit as a result of this Agreement or using or selling the Products.
  4. No Professional Advice and Revenue Guarantee. Certain Products, Labor, and Facilitated Services may provide a platform and framework through which you can calculate taxes, track compliance to regulations, and aid in accounting obligations. HOWEVER, YOU UNDERSTAND THAT THE PRODUCTS, LABOR, AND FACILITATED SERVICES ARE NOT INTENDED TO PROVIDE PROFESSIONAL ADVICE, AND ARE NOT A SUBSTITUTE FOR LEGAL ACCOUNTING, FINANCIAL, COMPLIANCE, OR OTHER FORMS OF ADVISORS AND EXPERTS. Results, reports, sample agreements, templates and other information generated by or provided through our Labor, Facilitated Services are opinion and must be reviewed in consultation with your professional advisors.
  5. LIMITATIONS AND EXCLUSIONS OF LIABILITY. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT WILL WE OR OUR LICENSORS OR SUPPLIERS BE LIABLE TO YOU OR TO ANY THIRD-PARTIES FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR COSTS, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR THE COST OF RECREATING THE SAME, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WE BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS. TO THE FULLEST EXTENT ALLOWED BY LAW, OUR TOTAL LIABILITY (AND THAT OF OUR SUPPLIERS/LICENSORS) ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WILL BE LIMITED TO DIRECT DAMAGES ONLY IN AN AMOUNT EQUAL TO THE FEES RECEIVED BY US RELATED TO THE INDIVIDUAL PRODUCT, LABOR, FACILITATED SERVICE, SERVICE SUBSCRIPTION, IN THE TWO (2) CALENDAR MONTHS PRIOR TO THE INCIDENT GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
  6. Essential Basis. The disclaimers, exclusions and limitations of liability set forth herein form an essential basis of this Agreement and have been relied on by both of us, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement and the Fees applicable to the Products would be substantially different.

17. INSURANCE

  1. Minimum Insurance. Client shall maintain a minimum level of insurance coverage for general commercial liability, workers comp, and errors and omissions of $1 million USD. Client shall also maintain a first party liability cyber insurance of $100,000 USD with third party limits of $1 million USD. RootPoint maintains a $1 million third-party policy limit for errors and omissions and cyber liability.
  2. Primary Insurance. Client’s insurance will act as the primary insurance over that of RootPoint.
  3. Eligibility of Third-Party Facilitated Services Guarantees. Client may also be eligible for a guarantee through certain Facilitated Service vendors if Client can meet auditable requirements.

18. NOTICES

  1. All legal notices required or permitted hereunder will be in writing and may be delivered by certified mail or nationally recognized courier (e.g., UPS, FedEx) and will be deemed effective upon receipt as evidenced by delivery confirmation. Notices must be sent to our office:
    RootPoint
    ATTN: MSA Legal
    1 Alhambra Plaza
    PH Floor
    Coral Gables FL 33134
  2. Legal notices will be sent to you at the main address that RootPoint has on record in your account information or via email at your email address on record. The Client must notify RootPoint of any address or contact information changes so they may be kept up to date in RootPoint’s CRM system. Such notice will be deemed effective upon the earlier of: (i) our receipt of email delivery notification; (ii) 48-hours after sending by first class mail, or (iii) 12 hours after sending by email. We will have no responsibility for failure to provide notice due to your failure to maintain current and accurate contact information with RootPoint.

19. FORCE MAJURE

  1. Force Majeure. Any delay in or failure of performance of either party (excluding obligations to pay for Products) will not constitute a default under this Agreement or give rise to any claim for damages to the extent such delay or failure of performance is caused by an event beyond such party’s control such as, for example, war, viruses, acts of public enemies, severe weather, utility failures, labor strikes, governmental orders imposed during an emergency, travel restrictions, natural disasters, acts of God, and telecommunication or Internet service interruptions.
  2. No Waiver. The failure of either party to insist in any instance upon any payment or performance when due by the other party, shall not relieve such other party of any of its obligations with respect to such performance, or constitute a waiver of such party’s right to insist upon the full and timely performance in the future of any of the other party’s obligations under this Agreement.
  3. Counterparts and No Third-Party Beneficiaries. This Agreement may be executed in counterparts, each of which will be deemed an original. Each member of the group of companies of which RootPoint may be the parent or subsidiary shall be a third-party beneficiary to this Agreement and entitled to directly enforce and rely upon any provision of this Agreement. Other than the foregoing, no other person or company shall be a third-party beneficiary to this Agreement.
  4. English Language. This Agreement has been drafted in the English language and such version will be controlling in all respects and any non-English version is solely for accommodation purposes.

20. ASSIGNMENT

  1. Right of Assignment. You may not assign this Agreement or any rights or obligations hereunder, including with respect to any individual Product, Order, Labor, or Facilitated Service, without our express written consent.
  2. Client may not assign this Agreement without written consent of both parties. RootPoint may transfer its rights in the event of acquisition without Client approval.

21. SURVIVAL

  1. Certain rights in this Agreement remain in force after termination of this Agreement, including Intellectual Property, Fees, Non-Disclosure, confidentiality, and non-circumvention.

22. SEVERABILITY

  1. If any part of this Agreement is deemed invalid by a court of law or Arbitration, then the remainder of the Agreement remains in effect.

23. NON-DISPARAGEMENT

  1. Non-disparagement. Both parties agree that they will not tarnish the reputation of the other.

24. ADDITIONAL PROVISIONS

  1. Electronic Communications. You consent to receive communications from us in electronic form and agree that all agreements, including this Agreement, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement as if in writing.
  2. No Waiver. The failure of either party to insist in any instance upon any payment or performance when due by the other party, shall not relieve such other party of any of its obligations with respect to such performance, or constitute a waiver of such party’s right to insist upon the full and timely performance in the future of any of the other party’s obligations under this Agreement.
  3. Counterparts and No Third-Party Beneficiaries. This Agreement may be executed in counterparts, each of which will be deemed an original. Each member of the group of companies of which RootPoint may be the parent or subsidiary shall be a third-party beneficiary to this Agreement and entitled to directly enforce and rely upon any provision of this Agreement. Other than the foregoing, no other person or company shall be a third-party beneficiary to this Agreement.
  4. English Language. This Agreement has been drafted in the English language and such version will be controlling in all respects and any non-English version is solely for accommodation purposes.
  5. Updates to this Agreement. We may update this Agreement (including referenced documents like Terms of Use) from time to time. We will notify you of changes by posting the updated Agreement on the appropriate Portal or website, and/or by sending a message to a primary account user for your organization. The updated Agreement will be effective 30 days from our notice unless you notify us that you object within such 30 days, provided that updated Agreements that apply only to future purchases or renewals may take effect immediately. By continuing to participate as a customer without objection, you agree to comply with the updated Agreement. Should you object to an updated Agreement RootPoint may, in its discretion, allow you to: (a) terminate the applicable Committed Terms without further payment obligation, or; (b) allow the previous set of Terms to continue to apply through the end of the Committed Terms. However, should you fail to terminate a Subscription Service at the end of the Committed Term, the updated Agreement shall apply during the renewal term.
  6. Publicity. You grant us the right and license to identify you as a RootPoint customer and (a) refer to you by name, trade name and trademark, if applicable, as well as (b) briefly describe your business in our marketing materials. If you do not wish to be publicly recognized, you must notify us in writing via the Notice section.

24. FACILITATED SERVICES TERMS OF USE, EULA, SERVICES AGREEMENTS, PRODUCT SPECIFIC TERMS, SERVICE LEVEL AGREEMENT, AND PRIVACY POLICIES

  1. Facilitated Services Terms. Facilitated Service Providers provide different Terms of Use, Terms of Service, Terms of Condition, End User License Agreements, Product Specific Terms, Service Level Agreements (“SLA”) and Privacy Policies (“Terms”). Below is a list of different Facilitated Services Terms.
    • Auvik – Network Monitoring
    1. EULA
    2. TERMS OF USE
    3. PRIVACY POLICY
    4. SLA
    • Conceal.IO
    1. TERMS OF USE
    • CyberQP
    1. TERMS OF USE
    2. PRIVACY POLICY
    • Duo
    1. EULA
    2. PRODUCT SPECIFIC TERMS
    3. TERMS OF USE
    4. PRIVACY POLICY
    5. SLA
    • Fortinet
    1. EULA
    2. Terms of Service
    3. Privacy Policy
    • Kaseya
    1. EULA
    2. Website Terms of Use
    3. Autotask
      1. Privacy Policy
      2. Terms of Use
    4. BCDR
      1. Datto Backup Agent Software License Agreement
      2. Privacy Policy
      3. Terms of Use
    5. BullPhish
      1. Privacy Policy
      2. Terms of Use
    6. Cloud Continuity
      1. Privacy Policy
      2. Terms of Use
    7. Compliance Manager
      1. Privacy Policy
      2. Terms of Use
    8. ConnectBooster
      1. Privacy Policy
      2. Terms of Use
    9. DarkWeb ID
      1. Privacy Policy
      2. Terms of Use
    10. Datto Commerce/Kaseya Quote Manager
      1. Privacy Policy
      2. Terms of Use
    11. Datto RMM
      1. Privacy Policy
      2. Terms of Use
    12. Network Detective Pro
      1. Privacy Policy
      2. Terms of Use
    13. VulScan
      1. Privacy Policy
      2. Terms of Use
    • Keeper
    1. Privacy Policy
    2. Terms of Use
    • Microsoft
    1. Microsoft 365 Terms of Use
    2. Privacy Statement
    3. Service Agreement
    4. Windows 11 Terms of Use
    • Pax8
    1. EULA
    2. Privacy Policy
    3. Product Specific Terms
    4. Terms of Use
    • Proofpoint
    1. EULA
    2. Privacy Policy
    3. Terms of Use
    • SentinelOne
    1. EULA
    2. Privacy Policy
    3. Terms of Use
    • Sophos
    1. End User Terms of Use
    2. Hardware Terms of Use
    3. MDR Complete Warranty
    4. Privacy Policy
    • TrueNAS
    1. EULA
    2. Privacy Policy
    3. Terms of Use
    • WatchGuard
    1. Cloud Hosted Service Level Agreement
    2. Privacy Policy
    3. SLA
    4. Support Levels
    5. Terms and Conditions
    6. Terms of Service

26. DEFINITIONS

  1. “Administrative Data” means data concerning registration, use and administration of Products that we may capture and may make available to you. For example, Administrative Data includes telemetry, logs that we keep regarding access to and use of the Portals, as well as access and use of Content. Administrative Data does not include the Content itself.
  2. “Affiliate” means an entity directly or indirectly controlling, controlled by or under common control with an entity.
  3. “API” means any form of machine accessible application interface that RootPoint makes available or Facilitates and that provides access to a Facilitated Service or other Third-Party Product, and the term API includes all associated tools, elements, software, development kits, libraries, documentation, metadata, sandboxes, specifications, code, technology, and other materials.
  4. “Applicable Laws” means any applicable law, rule, regulation, directive, code, order, or other requirement applicable to a party in any jurisdiction contemplated by this Agreement.
  5. “Block Of Hours” means a prepaid Order of labor time billable at one group. There is typically not a defined Scope of Work for these Blocks of Hours. Blocks of Hours may expire as defined in the Order. Hours used in excess of these blocks of hours will be billed either as an excess charge at the Time and Material Rate determined by RootPoint or a new Block of Hours will be added to the existing Order.
  6. “Confidential Information” means any operational and technical business information that is designated as confidential or that a reasonable person would believe to be confidential given the nature of the information or the circumstances of disclosure. Confidential Information may be oral, written, electronic, or in any other format and may include: information regarding the terms and conditions of this Agreement, the Products or Service; Intellectual Property Rights, pricing, discounts, marketing and business plans or opportunities, roadmaps, finances, penetration test results and other security information, third party audit reports, and Portal content. Confidential Information does not include Content, Feedback, Administrative Data or Aggregate Data. Also, Confidential Information does not include any information that: (i) was publicly available at the time of disclosure; (ii) became publicly available after disclosure through no fault of the receiving party; (iii) was known to the receiving party prior to disclosure by the disclosing party or (iv) was rightfully acquired by the receiving party after disclosure by the disclosing party from a third party who was lawfully in possession of the information and was under no legal duty to the disclosing party to maintain the confidentiality of the information.
  7. “Content” means all data and other content that is submitted or otherwise made available through use of the Products, or in connection with use of the Products, by you. An example of Content is your data that you may back-up through one of a Facilitated Services backup Products.
  8. “Covered Equipment” means all hardware under contract for Managed Services.
  9. “Documentation” means the current data, information, and other content that we make available to you under this Agreement regarding our Products, RootPoint Labor, Facilitated Services, or other information as updated from time to time, such as, for example, information we provide to you through our Portals like white papers, user manuals, KB articles, instructions, technical data sheets or industry information.
  10. “End User” means the person or entity that purchases a Product, Labor, or Facililitated Service for its own use and not for resale and owns, licenses, lawfully controls or uses Content, or for whose benefit Content is held, transmitted, or monitored in connection with any Product, Labor, or Facilitated Service. End User may also be referred to in certain Product Terms of Use, Portals or Specifications as Customer, Content Owner, Network Owner, or Client.
  11. “End User Terms” means terms related to certain Products that must be included in a valid, enforceable contract between a you and an End User or that are otherwise identified in the Product Terms of Use.
  12. “Facilitated Service” means any service offered by a third-party vendor. An example of a Facilitated Service is a backup service or logging service which RootPoint facilitates through a third-party provider.
  13. “Facilitated Service Provider” means any third party which provides services that RootPoint facilitates with Client. An example of this may be a backup service provider.
  14. “Fees” means subscription fees, hardware pricing, and other such fees and pricing set forth in this Agreement, an Order (including a SOW), or other such documentation for the purchase and license of Products.
  15. “Hardware” means any physical piece of computing equipment. This includes End User compute devices, a server, logging device, backup or business continuity appliance, networking equipment, firewalls, switches, access points, telephones, POS systems and other equipment.
  16. “Intellectual Property Rights” means all intellectual property rights, however arising and in whatever media, whether or not registered, including patents, copyrights, trademarks, service marks, trade names, design rights, database rights, domain names, trade secrets or other proprietary rights and any applications for the protection or registration of such rights and all renewals and extensions thereof throughout the world.
  17. “Labor” means any labor performed by RootPoint or Third Parties on behalf of RootPoint.
  18. “License” means the right to use a Product pursuant to the terms of this Agreement and as defined in the applicable Product Specifications. Licenses are measured in the form of a “License Unit” which varies depending on the Product, and may be in the form of storage units, seats, protected endpoints, or other such License Units.
  19. “Managed Services” means an agreed upon contractual group of Labor and/or Facilitated Services, by RootPoint to Client. These are billed on a monthly or annualized basis with a commitment term as defined in the Order or Scope of Work.
  20. “Marketing Materials” means press releases, advertising materials, and any other items or information in any medium provided by or on behalf of RootPoint for use by you in promoting the Products.
  21. “Master Agreement” means this Agreement. It may also be referred to as “Master Services Agreement.”
  22. “Official” means (i) a director, officer, employee, contractor, or agent of any government, military, or state-owned or Affiliate; (ii) any department, agency, corporate entity, instrumentality or political subdivision of any government or military; (iii) any person or commercial entity acting in an official capacity for or on behalf of any government or military; (iv) any candidate for political office, any political party or any official of a political party; or (v) any officer, employee, contractor, or agent of any public international organization such as the Red Cross or the UNICEF.
  23. “Order” means the ordering documentation for the initial or any renewal purchase of a Product, including a Service Subscription that specifies, as applicable, the Product, Service Subscription, quantity, applicable Fees, billing period and other charges as agreed to between you and RootPoint. An Order may be generated at the time of purchase in a Portal store, by provisioning in any Product Portal, at Service registration, and/or by separate written or electronic document. The term Order includes Statements of Work or similar document that describes Products and RootPoint Services. Orders shall be subject to and incorporate by reference the terms of this Agreement and the applicable Product Terms of Use.
  24. “Payment Processor” means certain payment processing companies third parties that payment processing companies, through which Client can access credit card and/or banking services, receive payments and make payments.
  25. "Point of Contact" means a person that Client has authorized to interface with RootPoint to assist in completion of the Labor and/or Facilitated Services.
  26. “Portal” means any web-based application, platform or portal provided by RootPoint that contains information related to the purchase, use, management, and support Products.
  27. “Postpaid” means charges for Product, Labor, Facilitated Services, and other fees delivered in a previous billing period. This may also be referred to as billed in arrears.
  28. “Prepaid” means charges for Product, Labor, and Facilitated Services provided at a later date. This may also be referred to as billed in advance.
  29. “Product” or “Products” means any Facilitated Service, Hardware, License, Portal, Software, or made available by RootPoint, as well as all Enhancements and Specifications related to all of the foregoing, that you use according to the terms and conditions of this Agreement.
  30. “Product Administrator” means a party authorized by Client to control, manage, support and/or use a Product for the benefit of Client.
  31. “Product Terms of Use” means individually and collectively, the terms and conditions issued by RootPoint or its Facilitated Service Partners that are applicable to the use of each Product. Many Product Terms of Use are listed in this document but may be updated by Facilitated Service Partners directly and available on their websites.
  32. “Professional Services” means labor and materials for implementation, configuration, integration, deployment, administration, customization, training, management, and other work that are provided by or facilitated through RootPoint. An Order for Professional Services may be referred to as a “Statement of Work.”
  33. “RootPoint Marks” means RootPoint’s trademarks, service marks, trade names, brands, domain names, URLs, logos, and other proprietary indicia (whether or not registered).
  34. “RootPoint Services” means all labor provided by or services facilitated by RootPoint, including without limitation, the business continuity, backup, disaster recovery, routing, file sharing, networking, hosting, remote monitoring and management, Professional Services, technical support, training, business management, Portals, or other applications offered by RootPoint.
  35. “RootPoint Software” means software technology and other Intellectual Property Rights of RootPoint and its licensors in or comprising any Product, as well as updates, upgrades, and modifications thereto, including any embedded software on hardware devices and any agent software loaded onto endpoints. The term Product includes RootPoint Software.
  36. “Service Level Agreement” means the agreement regarding the availability of services.
  37. “Service Subscription” means a subscription to the RootPoint Services that allow for use of a Product and/or Facilitated Service, including the details of any initial and any renewal term during which you subscribe to a Product, as specified in an Order. Service Subscriptions may describe the basic features, modules and/or usage measures applicable to the Products, such as a type of licenses, storage allotment and/or other features, each as described in the applicable Product Specifications. Product add-on or optional features may or may not be included in a Service Subscription. Details of Service Subscriptions vary per Product and are described in the current Product Specifications.
  38. “Specifications” or “Product Specifications” means the policies, documentation, price sheets, knowledge base articles, user manuals and any technical publications, and materials, as applicable, made available by RootPoint relating to Products.
  39. “Subscription Service” means a Facilitated Service from a third party.
  40. “Time and Material” means post-billed labor and materials. This may or may not have a Scope of Work assigned to it. RootPoint in its sole discretion determines the Labor Rates for any given type of work. Materials are purchased by RootPoint on behalf of the client and will be paid by Client. Some excess materials may be purchased but not consumed during the completion of the work but are still paid by the Client for the work.

27. ENTIRE AGREEMENT

  1. The entire Agreement binds the Master Service Agreement (“MSA”) to all subsequent orders, service attachments, and descriptions. The combination constitutes RootPoint’s entire understanding of the agreement between the parties.