Master Services Agreement

WHEN EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) GOVERNS CUSTOMER’S PURCHASE AND USE OF SERVICES FROM ER TECH PROS LLC (“ER Tech Pros”).

1. DEFINITIONS.

1.1. “Affiliate” means any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. ​

1.2. “Applicable Law” means all applicable statutes, laws, regulations, ordinances, executive orders, rules, judgments, orders, decrees, directives, guidelines (to the extent mandatory), policies (to the extent mandatory) and other similar directives, whether now or hereafter in effect, of any federal, state, or local government, any political subdivision, and any governmental, quasi-governmental, judicial, public, or statutory instrumentality, administrative agency, authority, body, or other entity having jurisdiction over ER Tech Pros, Customer or the Purchased Services, including without limitation, any laws and regulations relating to access, use, disclosure, storage or transmission of any personal information in connection with the Services.

1.3. “Customer” means the individual or entity defined as a “Customer” under an applicable Order Form.

1.4. “Customer Data” means any information that ER Tech Pros or its agents may have access to, receive, create, transmit, store, or maintain on behalf of Customer under this Agreement, including without limitation any information relating to an identified individual (or an individual whose identity could be discovered based on such information).

1.5. “Customer Support”. Customer support services will be available via telephone at (844) 900 5015 and/or email to imscloud@mghostingservices.com as detailed in the Service Level Agreement at www.mghostingservices.com/SLA.

1.6. “Effective Date” means the date on which Customer accepts and signs the Order Form. 

1.7. “ER Tech Pros” means ER Tech Pros LLC, a Delaware limited liability company.

1.8. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, programs, including, without limitation, any code that is intended to cause undesired effects, security breaches or damage to a system.

1.9. “Order Form” means the supplemental contract for purchases hereunder, including addenda to it, that are entered between Customer and ER Tech Pros from time to time. Order Form shall be deemed incorporated herein by reference.  Unless otherwise specified, the Order Form is electronically signed by the Customer.

1.10. “Purchased Services” means Services that Customer purchases under an Order Form.

1.11. “Services” means the online, Web-based applications and platform, hosting services and/or data processing services provided by ER Tech Pros under this Agreement and any applicable Order Form executed between Customer and ER Tech Pros.

1.12. “Software Applications” means the hosted software applications purchased  by  and  under  license  to Customer as detailed in the Order Form. 

1.13. “Third-Party Applications” means online, Web-based applications, infrastructure, and offline software products that are provided by third parties, interoperate with the Services and are identified as third party applications.

1.14. “Users” means individuals who are authorized by Customer to use the Services and who have been supplied user identifications and passwords by Customer (or by ER Tech Pros at Customer’s request). Users may include but are not limited to Customer’s employees, consultants, contractors, and agents; or third parties with which Customer transacts business.

1.15. “We,” “Us” or “Our,” if used herein, means ER Tech Pros.

1.16. “You” or “Your,” if used herein, means the Customer as defined in a duly executed Order Form.

2. PURCHASED SERVICES.



ER Tech Pros shall make the Purchased Services available to Customer under this Agreement and the relevant Order Form during the term provided for in a duly executed Order Form.

3. USE OF THE SERVICES.

3.1. ER Tech Pros’ Responsibilities. ER Tech Pros shall provide the Purchased Services described herein, and in the Order Form executed by the Parties.

3.2. Customer’s Responsibilities. Customer shall (i) be responsible for compliance with this Agreement, including payment of fees, (ii) be solely responsible for the accuracy, quality, integrity and legality of the Customer’s Data and of the means by which Customer acquired the Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Purchased Services, and notify ER Tech Pros promptly of any such unauthorized access or use, and (iv) use the Purchased Services only in accordance with Applicable Law. You shall not (a) sell, resell, rent, lease or loan the Purchased Services, (b) use the Purchased Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights, (c) use the Purchased Services to store or transmit Malicious Code, (d) interfere with or disrupt the integrity or performance of the Purchased Services or third party data contained therein, or (e) attempt to gain unauthorized access to the Purchased Services or their related systems or networks.

3.3. License.   Customer represents and warrants to ER Tech Pros that Customer has a current,  valid  and  fully-paid  license  to  use  the Software  Applications  and  that  the  Customer  is  following  all terms  and  conditions  of  each  such  license  with  each  vendor  of any  Software  Application.  Improper licensing or license piracy may result in  the  applicable  software  vendor  pursuing  legal action  and  shall  constitute  a  material  breach  of  this  Agreement and  shall  permit  ER Tech Pros to  terminate  this  Agreement  and  the Hosting  Services  immediately  upon  notice  to  Customer. 

3.4. Compliance with Network Specifications.   Customer shall obtain and maintain, at its  sole  expense,  equipment,  and  appropriate telecommunication  service  adaptable  to,  compatible  with,  and suitable  for  communication  with  ER Tech Pros’ network specifications.     

3.5. Fraud or Abuse.   ER Tech Pros reserves the right to interrupt or restrict service without notice to you if ER Tech Pros suspects fraudulent or abusive  activity.  Customer agrees to cooperate with ER Tech Pros in any fraud investigation and to use any fraud prevention measures ER Tech Pros prescribes within reason. Customer shall be solely liable for and shall indemnify ER Tech Pros against, any and  all  damages  resulting  from  Customer’s fraudulent  or  abusive  usage  or  activity.     

3.6. Unauthorized Installation.  ER Tech Pros reserves the right to interrupt or restrict  service  without  notice  to  Customer  if  ER Tech Pros detects evidence  that  Customer has  attempted  any  software  installation  or have placed executable program code on ER Tech Pros systems without explicit knowledge of or written permission from ER Tech Pros. Customer agrees to cooperate with ER Tech Pros in any investigation relating to software or code installations and to use any prevention measures ER Tech Pros prescribes within  reason. Customer shall be solely liable for and shall indemnify ER Tech Pros against any  and  all  damages  resulting  from  any  such unauthorized  software  or  code  implementation  by  Customer.

3.7. Two-Factor Authentication. ER Tech recommends the use of two-factor authentication to provide increased security on the Services by adding an extra layer of security that will prevent an unauthorized user from logging in, even if such person has Customer's password. This extra security measure requires Customer to verify his/her identity by providing a token or confirming a push notification on the Customers enrolled smartphone each time Customer attempts to log in. In no event, ER Tech shall be liable to Customer for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not ER Tech has been advised of the possibility of such damages, in case Customer decides not to implement two-factor authentication in its account.

4. HOSTING SERVICES (IF APPLICABLE)

4.1. LIMITATION ON USE OF HOSTING SERVICES 

4.1.1. Use by Customer. Customer acknowledges and agrees that Customer may use  the  Hosting  Services  only  for  its  internal operations  and  for  providing  services  to  its  customers. Customer shall not have the right to use  the  Hosting  Services to  provide  services  to  third  parties  other  than  its  customers under  the  terms  of  this  Agreement.  With  respect  to  each Software  Application,  (i)  Customer  explicitly  grants  to  ER Tech Pros the  right  to  share  Customer’s  license  information,  including  all license-related  keys  and  numbers,  payroll  keys  and  numbers, and  number  of  users  subscribed  with  ER Tech Pros,  with  the applicable  software  vendor  for  verification  and  tracking purposes,  (ii)  Customer  agrees  that  the  applicable  software vendor  is  not  a  party  to  this  Agreement  and  that  such  software vendor  disclaims  any  liability  for  the  Hosting  Services  and provides  no  warranty  whatsoever,  and  (iii)  such  software vendor  is  responsible  solely  for  the  Software  Application  itself, and  not  for  the  Hosting  Services,  nor  any  other  product  or service  offered  by  ER Tech Pros directly  or  through  third  parties.

4.1.2. Software.   This Agreement solely covers the Hosting  Services provided  by  ER Tech Pros.  Unless licensed to use any software is explicitly  stated  or  implied  within  this  Agreement,  all  Software Applications  must  be  purchased  and/or  licensed  separately. 

4.1.3. Customer will not send unsolicited commercial  email  from  the Hosting  Services  or  ER Tech Pros’ network. 

4.1.4. Customer will  keep  secure  any  identification,  password  and other  confidential  information  relating  to  the  Hosting  Services and  shall  notify  ER Tech Pros immediately  of  any  known  or  suspected unauthorized  use  of  the  account  or  breach  of  security,  including loss,  theft  or  unauthorized  disclosure  of  your  password  or  other security  information. 

4.1.5. Customer  understands  and  agrees  that  the  Hosting  Services  may work  in  conjunction  with  Third-Party  Applications  (including  the  Software Applications)  and  Customer  hereby  represents  and  warrants to ER Tech Pros  that  Customer  is  properly  licensed  to  use  such  Third-Party Applications  (including  the  Software  Applications). 

4.2. HOSTED ENVIRONMENT. 

4.2.1. ER Tech Pros will generate regularly scheduled back-ups  of  the  Customer  Data  on  a  daily  basis,  will  promptly  remove Customer  Data  from  the  ER Tech Pros servers  upon  the  termination  of  this Agreement,  and  will  periodically  install  security  updates  and  software patches  on  the  hosting  server.  While ER Tech Pros will take reasonable steps  to  ensure  the  integrity  and  security  of  the  hosting  environment, ER Tech Pros  does  not  guarantee  that  the  Hosting  Services  including without  limitation  the  hosted  environment  will  be  free  from unauthorized  users  or  hackers.  ER Tech Pros will take reasonable security precautions or remedial  action  that  it  deems  appropriate  or  necessary. While ER Tech Pros’ Hosting Service uses  encryption  technology,  and  the law  generally  prohibits  third  parties  from  monitoring  transmission, ER Tech Pros  does  not  guarantee  or  warrant  security  with  respect  to  the connection  to  the  Hosting  Services.

5. FEES AND PAYMENT FOR PURCHASED SERVICES.

5.1. Fees. Customer shall pay the fees specified in all Order Form (s) incorporated herein. Except as otherwise specified herein or in an Order Form, (i) fees are quoted, and payable in United States dollars (ii) fees are based on Services purchased and not actual usage, and (iii) payment obligations are non-cancelable and fees paid are non-refundable. 

5.2. Invoicing and Payment. Customer is responsible for providing ER Tech Pros with valid payment methods.  If the Order Form specifies a credit card payment, Customer will provide valid and updated credit card information.  If Customer provides credit card information to ER Tech Pros, Customer authorizes ER Tech Pros to charge such credit card for all Purchased Services listed in the Order Form. Such charges shall be made following the billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, the Customer will provide ER Tech Pros with a valid purchase order or alternative document reasonably acceptable to ER Tech Pros. ER Tech Pros will invoice Customer after providing the services and otherwise following the terms in the Order Form. Unless otherwise stated in the Order Form, invoiced charges are due upon receipt of the invoice. Customer is responsible for maintaining complete and accurate billing and contact information. ​ 

5.3. Overdue Charges. If payments on open balances are not received from Customer by the due date, then at ER Tech Pros’ discretion, (a) such open balance may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

5.4. Suspension of Service and Acceleration. If any amount owing by Customer under this Agreement and any Order Form for Purchased Services is ten (10) or more days overdue, ER Tech Pros may, without limiting any other rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreement and any Order Form so that all such obligations become immediately due and payable, and may suspend services or restrict access to Customer until such amounts are paid in full.

5.5. Payment Disputes. ER Tech Pros shall not exercise its rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.

5.6. Taxes. Unless otherwise stated, ER Tech Pros’ fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively,” Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If ER Tech Pros has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides ER Tech Pros with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.7. Fee Increases.  All fees shall increase on each anniversary of the applicable Order Form by an amount, as notified by ER Tech Pros, that does not exceed 5%.  Furthermore, Customer acknowledges that ER Tech Pros fees are in part dependent on the cost imposed on it by Third Party Applications that are outside of ER Tech Pros' control.  As such, ER Tech Pros shall be entitled to increase the Fees at any time by giving the Customer not less than thirty (30) days’ written notice if any Third Party Applications have increased their fees or charges in a manner that increases the costs imposed on ER Tech Pros  under the applicable Order Form, provided that such increase shall be limited to the additional cost imposed on ER Tech Pros  as may be apportioned to the applicable Order Form.

6. PROPRIETARY RIGHTS.

6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, ER Tech Pros reserves all rights, title, and interest in and to the Purchased Services and the Software Applications, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

6.2. Restrictions. Customer shall not (i) permit any third party to access the Purchased Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Purchased Services, (iii) copy, frame or mirror any part or content of the Purchased Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes, (iv) reverse engineer the Purchased Services, or (v) access the Purchased Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Purchased Services.

6.3. Ownership of Customer Data. Customer is the exclusive owner of all rights, title, and interest in and to all Customer Data.  Upon expiration or termination of this Agreement for any reason, or at any time upon request, ER Tech Pros shall deliver all Customer Data to Customer, at the then applicable rates, and destroy all copies of the same.

6.4. Suggestions. ER Tech Pros shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Purchased Services.

7. CONFIDENTIALITY

7.1. Definition of Confidential Information. As used herein, “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information shall include Customer Data; ER TECH PROS’s Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Customer Service Agreements, as well as business and marketing plans and strategies, financial information and projections, technology and technical information, product plans and designs, prices or quotes for services, customer lists and customer information, and all business processes or other information to which a party has access as a result of this Agreement.  However, Confidential Information (other than Customer Data) shall not include any information that (i) is or becomes known to the public without breach by the other party of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. It is specifically acknowledged and understood that Confidential Information might consist of (i) information transmitted in written, oral, digital, or any other medium, (ii) all copies and reproductions, in whole or in part, of such information and (iii) all summaries, analyses, compilations, studies, notes or other records which contain, reflect, or are generated from such information.

7.2. Protection of Confidential Information. Except as otherwise expressly permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its Confidential Information of like kind (but in no event less than reasonable care and consistent with industry practices and standards); (ii) the Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (iii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

7.3. Protection of Customer Data. In addition to and without limiting its obligations under Section 7.2 above, ER Tech Pros agrees as follows:

7.3.1. ER Tech Pros shall comply with all applicable industry practices and standards and Applicable Law relating to the protection of Customer Data.

7.3.2. Except to the extent necessary to carry out ER Tech Pros’ express obligations under this Agreement, ER Tech Pros shall not use Customer Data for any purpose.

7.3.3. Except to the extent necessary to carry out ER Tech Pros’ express obligations under this Agreement, ER Tech Pros shall not disclose any Customer Data to any person or entity, including, but not limited to, any of ER Tech Pros’ employees, agents, or contractors. 

7.3.4. If ER Tech Pros proposes to disclose Customer Data to any person or entity to assist ER Tech Pros to perform its duties under this Agreement, ER Tech Pros shall enter into a written confidentiality agreement containing the same confidentiality provisions as are set forth herein with such person or entity under which that person or entity would be restricted from disclosing, using, or duplicating such Customer Data, except as contemplated under this Agreement.  Notwithstanding any such confidentiality agreement, ER Tech Pros shall remain liable for any failure of such person or entity to comply with such confidentiality agreement.

7.3.5. ER Tech Pros represents and warrants that it has established and shall maintain and comply with a written information security program that is consistent with industry standards and that includes reasonably appropriate administrative, technical and physical safeguards designed to meet the following objectives: (1) protect the security and confidentiality of Customer Data; (2) protect against any anticipated threats or hazards to the security or integrity of Customer Data; and (3) protect against unauthorized access to or use of Customer Data (collectively, such safeguards referred to as an “Information Security Program”).  ER Tech Pros shall provide Customer with copies of its written policies and procedures relating to its Information Security Program upon request and shall notify Customer of any material changes to its Information Security Program.  As part of its Information Security Program, ER Tech Pros shall take appropriate measures not to retain Customer Data for longer than it needs such information to perform its obligations hereunder, and that it properly disposes of Customer Data, whether such information is in paper, electronic, or other forms. 

7.3.6. ER Tech Pros shall not modify Customer Data.

7.4. Data Security. In the event ER Tech Pros knows or reasonably believes that there has been any unauthorized access, use or disclosure (or attempted unauthorized access, use or disclosure) to or of any Customer Data, (A) the occurrence of which arises out of any act or omission of ER Tech Pros, or (B) while such Customer Data is in the possession, custody or control of, ER Tech Pros or ER Tech Pros’ employees or agents (collectively, a “Data Security Breach”), ER Tech Pros shall, at its sole cost and expense and without limiting Customer’s rights and remedies in law or at equity, take the following actions:

7.4.1. notify Customer of such Data Security Breach without unreasonable delay and in no event later than thirty (30) days after discovery.

7.4.2. to the extent possible the following information will be provided: (1) a description of the affected Customer Data; (2) a description of the facts pertaining to the Data Security Breach, including without limitation, the date of the breach and the date of discovery of the breach, (3) the names of the individuals who committed or were involved in the Data Security Breach, (4) the names of the unauthorized individuals or entities to whom Customer Data has been disclosed, and (5) such other information as Customer may reasonably request including, without limitation, the information, data, and documentation required by Customer to timely comply with Applicable Law;​

7.4.3. take reasonable steps to remedy the circumstances that permitted any the Data Security Breach to occur and to prohibit further Data Security Breaches of Customer Data and provide Customer with notice thereof.

7.4.4. share with Customer the results of any computer forensics analysis of any Data Security Breach conducted by ER Tech Pros or any expert retained by ER Tech Pros. 

7.4.5. permit Customer (at its expense) to investigate, during normal business hours upon prior written notice, and in a manner that does not unduly interfere with ER Tech Pros’ operations, of the scope and content of any unauthorized access.

7.4.6. cooperate with Customer as reasonably necessary to facilitate compliance with any Applicable Law regarding unauthorized access, use or disclosure of Customer Data; and,

7.4.7. pay reasonable costs and expenses incurred by Customer in responding to the Data Security Breach.  Any notice sent concerning a Data Security Breach shall be mutually agreed upon by the parties, such agreement not to be unreasonably withheld, conditioned, or delayed.

7.5. Compelled Disclosure. If the Receiving Party is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation demand, or similar process) to disclose any of the Confidential Information, the Receiving Party shall immediately notify the Disclosing Party in writing of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions hereof. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

7.6. Remedies for Breach of Confidentiality/Customer Data Obligations.  The parties agree that any breach or threatened breach of this Section 7 of this Agreement by a party could cause not only financial harm but also irreparable harm to the other party, and that money damages may not provide an adequate remedy for such harm.  In the event of a breach or threatened breach of this Section 7 of this Agreement by a party, the other party shall, in addition to any other rights and remedies it may have at law or in equity, be entitled to seek equitable relief, including, without limitation, an injunction (without the necessity of posting any bond or surety) to restrain such breach.

7.7. HIPAA. With regard to its use and/or disclosure of Protected Health Information (“PHI”) as defined in the Health Insurance Portability and Accountability Act (“HIPAA”), ER Tech Pros and Customer shall be subject to the terms and conditions of the Business Associate Agreement (“BAA”) to be provided to the Customer, executed by the parties and incorporated herein by reference. The parties agree to amend or execute any necessary agreements as necessary to comply with all applicable rules and regulations.

8. WARRANTIES AND DISCLAIMERS.

8.1. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).

8.2. ER Tech Pros is not Responsible for Outages Caused by Third Parties. ER Tech Pros is not responsible for downtimes or unplanned outages caused by any third party.  ER Tech Pros shall use commercially reasonable efforts to work with such third parties to minimize any such downtimes or outages. ​

8.3. Representations. ER Tech Pros represents and warrants that: (i) it will perform the Services in a professional and worker-like manner; (ii) the Services will conform in all material respects to any published documentation relating to such Services, and any functional/performance requirements or specifications agreed to by the parties in writing.

8.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. INDEMNIFICATION.

9.1. Indemnification. Customer shall defend ER Tech Pros against any claim made or brought against ER Tech Pros by a third party alleging that ER Tech Pros’ authorized use of any Customer Data hereunder infringes or misappropriates the intellectual property rights of a third party or violates Applicable Law, and shall indemnify ER Tech Pros for any damages finally awarded against, and for reasonable attorney’s fees incurred by, ER Tech Pros in connection with any such Claim; provided, that ER Tech Pros (a) promptly give Customer written notice of the claim, (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle any claim unless the settlement unconditionally releases ER Tech Pros of all liability), and (c) provide to Customer all reasonable assistance. This provision shall survive the termination of this Agreement.

9.2. Exclusive Remedy. Section 9.1 (Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any claim described in this Section.

10. LIMITATION OF LIABILITY: EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES.

WITHOUT LIMITING EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PRECEDING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

11. TERM AND TERMINATION.

11.1. Term of Agreement. This Agreement commences on the date Customer executes an Order Form wherein Customer agrees to all terms and conditions contained within this Agreement and continues throughout the term of Customer’s contractual relationship with ER Tech Pros unless stated otherwise within this Agreement.

11.2. Free Trial (IF APPLICABLE). 

11.2.1. The Free Trial Period (“Free Trial”) shall begin on the Effective Date and shall last for the period specified therein. After the end of the Free Trial, ER Tech Pros shall begin to bill the fees specified in the Order Form for the Purchased Services.

11.2.2. Customer will be required to provide payment card details as part of the process, to allow automatic payments once the Free Trial period ends.

11.2.3. Customer can cancel the Purchased Services during the Free Trial by sending written notice of cancellation to ER Tech Pros at least three (3) working days before the Free Trial ends. Reminder emails will be sent seven (7) days before the first payment is due. ER Tech Pros will be responsible to remove any tools that may have been installed for purposes of device management.

11.2.4. Customer shall be solely responsible to initiate the migration process as quickly as possible to maximize the Free Trial. Customer shall be responsible to provide the data for the Purchased Services. Any delays
caused due to the insufficient data at the Customer’s end, shall be Customer’s responsibility and will not be
deducted from the Free Trial.

11.2.5. Free Trial is available to new customers only.

11.2.6. Purchased Services provided by third parties are not eligible for the Free Trial and if selected, must be paid accordingly.

11.2.7. Free Trial might not be available for customers in all regions.

11.2.8. Notice will be sent if payment fails for any reason. Customer shall be responsible to make sure payment details are correct to allow successful renewal payments.

11.2.9. ER Tech Pros reserves the right to remove or cancel the Free Trial at any time.

11.2.10. ER Tech Pros reserves the right to change the features of the Free Trial at any time. 

11.2.11. ER Tech Pros reserves the right to deny or cancel Purchased Services at any time and for any reason.

11.3. Initial Term. The Initial Term (“Initial Term”) of this Agreement shall begin on the Effective Date and will continue for the term specified in the Order Form. 

11.4. Renewal Term.   If  Customer  does  not  provide  written  notice  of non-renewal  to  ER Tech Pros at  least  sixty  (60)  days  prior  to  the  final day of the Initial Term, this Agreement  will  be  automatically renewed  for an additional period of twelve (12) months (each, a “Renewal  Term”)  (the  Initial  Term  and  all  subsequent  Renewal Term(s),  together,  the  “Term”). 

11.5. Termination for Cause. In  addition  to  any  and  all  other  rights available  according  to  law, ER Tech Pros and Customer may terminate this Agreement for cause: (i) upon 30 days written notice to the other party for a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors which is not stated or dismissed within 30 days. Customer shall immediately be  responsible  for  payment  of  all outstanding  fees  and  costs  owed  to  ER Tech Pros within  seven  (7) days  of  such  termination. 

11.6. Termination without Cause. Except as provided in Sections 11.2, 11.4 and 11.5 herein, Customer may not terminate this agreement without cause. Customer shall be required to pay an amount equal to the remaining payments due under the applicable term for any early cancellations. 

11.7. Surviving Provisions. Section 5 (Fees and Payment for Purchased Services), 6 (Proprietary Rights), 7 (Confidentiality), 8 (Warranties and Disclaimers), 9 (Indemnification), 10 (Limitation of Liability), 12 (Notices, Governing Law and Jurisdiction) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.

12. NOTICES, GOVERNING LAW AND JURISDICTION.

12.1. Notices. All notices, requests, demands and other communications required to or permitted to be given under this Agreement shall be in writing and shall be conclusively deemed to have been delivered when: (i) hand-delivered to the other Party; or (ii) upon deposit in the U.S. Post Office to the other party; or (iii) electronic mail transmission as set forth below:

12.1.1. If to ER Tech Pros: ER Tech Pros LLC

8795 Folsom Blvd STE 205

Sacramento CA 95826

With a copy to: MedPharm Services LLC

        3100 CARR 199 STE 202

        San Juan PR 00926

12.1.2. If to Customer: to the address provided by Customer in the Order Form.

12.2. Governing Law and Venue. Each party agrees to the application of California law, without regard to any conflicts of law principles. ​Venue for any action arising out of this Agreement shall be brought exclusively to the state or federal courts located in Sacramento County, California.

12.3. Waiver of Jury Trial. Each party with this waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

12.4. Arbitration. The parties acknowledge that they have a right to submit any controversy, claim or dispute to civil litigation and to have such matter resolved by a jury. Notwithstanding section 12.2 and as further consideration to enter into this agreement, the parties agree that any controversy, claim, or dispute between the parties which arises out of this agreement shall be submitted to and resolved exclusively by binding arbitration in Sacramento County, California, in accordance with the rules set forth in the California code of civil procedure, title 9, section 1280 et seq., using a single neutral arbitrator.  In any legal action, arbitration or proceeding each party shall be responsible for its costs and attorney’s fees. However, in any arbitration, proceeding, action or collection claim to (i) solely and exclusively collect past due fees from client and/or (ii) any action or proceeding to enforce the arbitration provision specified in this section, in addition to the remedies and rights created herein and without waiving the same, the prevailing party shall be entitled to collect the reasonable attorney’s fees and costs.

13. GENERAL PROVISIONS.

13.1. Relationship of the parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

13.2. No Third-Party Beneficiaries. There are no third party beneficiaries to this Agreement.

13.3. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

13.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

13.5. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

13.6. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Form(s) executed in accordance with this Agreement, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail.

13.7. Force Majeure.  Neither ER Tech Pros nor Customer shall be held liable for failure of or delay in performing its obligations under this Agreement if such failure or delay is the result of an act of God, such as earthquake, hurricane, tornado, flooding, or other natural disasters, or in the case of war, action of foreign enemies, terrorist activities, pandemics, labor dispute or strike, government sanction, blockage, embargo, or failure of electrical service. The non-performing party must make every reasonable attempt to minimize delay of performance. In the event force majeure continues longer than one hundred and twenty (120) days, either party may terminate the Agreement.

13.8. Publicity. ER Tech Pros will not, without Customer’s prior written approval, cause or permit to be released any publicity, including press releases, advertisements, news/web releases, announcements, customer lists that include any name or trademark of Customer, or any other form of public communication that relate to the Services hereunder (including any use of Third-Party Applications), ER Tech Pros’ relationship with Customer or this Agreement, or denial or confirmation of same.