HomeMy WebLinkAboutSimplifile, LC Master Services Agreement - 2018 10 28Master Services Agreement (MSA)
This Master Services Agreement (the "Agreement") is entered into and made effective as of this __ day of
____ , 20_ (the "Effective Date"), by and between Simplifile, LC, a Utah limited liability company located at
5072 North 300 West, Provo, Utah 84604 ("Service Provider"), and the City of Winter Springs, a Florida
municipal corporation located at 1126 East State Road 434, Winter Springs, FL 32708 ("Customer") with respect
to the facts set forth below. Throughout this Agreement, any reference to "Customer" shall include not only the City
of Winter Springs, but also any Affiliate, employee, contractor, manager, member, director, officer, shareholder,
agent or representative of Customer; provided that as set forth in Section 2(d) below.
RECITALS
A. Service Provider may provide, as part of the Customer Services, certain services, either directly or indirectly,
that are contracted for through Third Party Service Providers (collectively, the "TPSPs"). These TPSP services
may be delivered through their web-based software applications and web-based services, which are considered
Confidential Information of Service Provider, as that term is defined herein; and
B. Customer recognizes and acknowledges that Service Provider's Confidential Information constitutes a valuable,
special and unique asset and that the provisions of this Agreement are necessary to protect it.
C. Customer desires to obtain access to Service Provider's web-based software application and services pursuant
to the terms and conditions of this Agreement; and
D . Pursuant to the terms and conditions of this Agreement, Customer desires to subscribe the Right to Use from
Service Provider and Service Provider desires to subscribe the Right to Use and the Customer Application to
Customer under the terms and conditions set forth below.
AGREEMENT
NOW THEREFORE, in exchange for their mutual covenants and promises contained herein, each intending to be
legally bound hereby, and in consideration of the following mutual promises and covenants, the parties hereby
agree as follows:
1. Definitions. Capitalized terms shall have the meaning set forth herein.
a. Affiliate. The term "Affiliate" shall mean any entity which directly or indirect ly controls, or is controlled by
Customer. The term "control" as used herein means (1) in the case of corporate entities, direct or indirect
ownership of at least fifty percent (50%) of the stock or shares entitled to vote for the election of directors;
or (2) in the case of non-corporate entities, direct or ind irect ownership of at least fifty percent (50%) of
the equity interest with the power to direct the management and policies of such non-corporate entities.
Unless otherwise specified, the term Customer includes Affiliates.
b. Confidential Information. Confidential Information shall mean non-public information of a party to this
Agreement which the City is not required by the Florida Public Records Act, Ch. 119, Florida Statutes,
to publicly disclose for inspection and copying. Confidential Information of Service Provider or a TPSP
includes its proprietary software and algorithms, methods, techniques, and processes revealed by the
Software that constitute a trade secret as defined in Section 812.081, Florida Statutes, and as provided
for in Sections 815.04(3) and 815.045, Florida Statutes. Confidential Information does not include
information that:
(1) is or becomes known to the public without fault or breach of the receiving party;
(2) the disclosing party regularly discloses to third parties without restriction on disclosure; or
(3) the receiving party obtains from a third party without restriction on disclosure and without breach of
a written non-disclosure obligation.
simplijile;
Further, the parties agree that Confidential Information does not include data stored within the Service
Provider or TSPS's proprietary software or any input and/or output sensory displays of or from the
proprietary software.
c. Customer Application . The term "Customer Application" shall mean any applications of Service Provider
that allow the Customer to access Customer Services rendered by Service Provider under the terms of
this Agreement.
d. Customer Services. The term "Customer Services" shall mean any services provided by Service Provider
pursuant to this Agreement, limited to those services selected by Customer in the applicable Service
Addendum, which is attached to this Agreement and is incorporated herein by reference.
e. Intellectual Property Right. The term "Inte llect ual Property Right" shall mean any patent, patent
appl ica tion, copyright, moral right, trade name, trademark, service mark, trade secret, and any
applications or right to apply for registration therefor, internet domain names, logos, designs, slogans,
and general intangibles of like nature, computer software programs or applications, tang ible or intangible
proprietary information, know-how, proprietary processes, formulae, algorithms, or any other intellectual
property right, whether registered or unregistered, and whether first created before or after the effective
date of this Agreement that is owned by Service Provider.
f. Right to Use. The term "Right to Use" shall mean Customer's collective right to use the Customer
Application and the Customer Services.
g. User. The term "User" shall mean each person or entity that has access to any of the Customer Services
through the Customer Application.
2. Grant of Right to Use; Intellectual Property Rights.
a. Grant of Right to Use. Subject to the terms and conditions of this Agreement, and in consideration of
Customer's payment of all applicable fees set forth in Section 3 below, Service Provider grants to
Customer a non-subscribable, nonexclusive, nontransferable right to internally use and access the
Customer Service vis-a-vis the Customer Application solely for Customer's business operations as
referenced in this Agreement during the term of this Agreement.
b. Retention of Rights; Responsibility for Equipment. As between the parties, Service Provider retains all
right, title, and interest to all Intellectual Property Rights in its Customer Application and the Customer
Services, and any copies thereof. Customer shall only be entitled to use the Right to Use as specified
herein. Nothing in this Agreement grants Customer any r ight, title, Right to Use or interest in or relating
to the source code of the Customer Application. Any third-party software embedded, included or
otherwise provided by Service Provider for use with the Customer Application may only be used in
conjunction with such Customer Application. The Customer Application is designed for use with certain
equipment and accessories. Service Provider assumes no responsibility under this Agreement for
obtaining or providing such equipment. Customer is also responsible for ensuring a proper environment
and proper utilities for the computer system with which the Customer Application will be used.
c . Maintenance of Intellectual Property Rights; Protection of Customer Application. Customer agrees to
mai ntain all of the Intellectual Property Rights included in the Right to Use and shall not (nor shall it allow
any third party to: (i) reverse engineer, decompile, translate, disassemble or attempt to discover any
source code or underlying ideas or algo rithms of any part or all of the Customer Application (except to
the extent such restriction is prohibited by applicable local law in order to obtain interoperability), (ii) sell,
lease, len d, disclose, or use for timesharing or service bureau purposes any part or all of the Customer
Application, (iii) use, provide, or allow others to use Customer Application for the benefit of any third
party, (iv) use Customer Application, or allow the transfer, transmission, export, or re-export of any
Customer Application, or portion thereof, in violation of any export control laws or regulations
administered by the U.S. Commerce Department's Bureau of Export Administration , the U.S.
SIMPLIFILE I MASTER SERVICES AGREEMENT 2
Department of Treasury's Office of Foreign Assets Control, or any other applicable government agency,
or (v) except as otherwise set forth in this Agreement reset or disable the Customer Application.
d. Sub-Subscribing Prohibited. Customer shall have no right to subscribe or sub-subscribe any of the
foregoing to any party with respect to the rights conferred upon Customer under this Agreement without
the express written consent of Service Provider.
e . No Other Right to Use. This Agreement confers no additional rights to use or other rights by implication,
estoppel, or otherwise under any patent applications or patents of Service Provider other than the Right
to Use regardless of whether such patents are dominant or subordinate to the Right to Use.
3. Right to Use Fees. Customer agrees to pay the following fees and costs to Service Provider in exchange for
the Right to Use:
a. Fees. Customer shall pay to Service Provider those fees (the "Fees") for those services set forth
in the applicable Service Addendum, as amended or added to, even if such services are provided
by a TPSP.
b. Customer Support. Service Provider will provide Customer with customer support Monday through
Friday from 6:00 a.m. to 6:00 p.m., Mountain Time, excluding Service Provider's observed holidays,
which include Presidents Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and the
date after Thanksgiving, Christmas Eve day, Christmas Day, New Year's Eve, New Year's Day.
Emergency support is available outside the normal help desk support times twenty-four (24) hours each
day, seven (7) days per week. Access to customer support or emergency support shall be made to the
following e-mail address or the following toll-free number:
Toll-free Number: 800.460.5657
E-mail address: support@simplifile.com
c. Payment of Taxes. The parties acknowledge that Customer is subject to certain sales, use or other taxes
that are being assessed against either the Customer Services or the sale of the Customer Application.
As such, the parties agree and acknowledge that the Service Provider's fees listed herein have been
quoted exclusive of all sales, use or other taxes assessed directly on the Customer Services and/or the
sale of the Customer Application, as the case may be, and any attendant services rendered to Customer.
Therefore, Customer does hereby agree to pay to Service Provider all taxes, fees, duties, licenses, tariffs,
and levies imposed directly by a governmental entity upon the provision of Customer Services or the
sale of the Customer Application or any services provided herein by Service Provider to Customer.
4. Payment of Fees. Customer agrees to pay the Fees set forth in the applicable Services Addendum, as
amended or added to. Service Provider reserves the right to suspend its service to Customer upon five (5)
days' notice to Customer if Customer's account becomes delinquent as a result of undisputed charges (meaning,
any payment of Fees set forth in an Invoice is not paid within the time frame set forth in the applicable Services
Addendum, as amended or added to).
5. Ownership.
a. Ownership by Service Provider. Service Provider retains all rights, title and interest in and to the
Customer Services and the Customer Application as delivered by Service Provider to Customer
hereunder, along with all updates, modifications or improvements and all documentation related thereto
and all intellectual property rights embodied in any of the foregoing.
b. Service Provider Trademark Ownership. Customer acknowledges that Service Provider owns or holds
exclusive rights in and to any and/or all of its Intellectual Property Rights. As such, without the express
written consent of Service Provider, Customer will not use any Intellectual Property Rights as part of any
of its product, service, domain, sub-domain or company names and will not take nor authorize any action
inconsistent with Service Provider's exclusive trademark rights during the term of this Agreement or
SIMPLIFILE I MASTER SERVICES AGREEMENT 3
thereafter. Nothing in this Agreement grants Customer ownership or any rights in or to use the Intellectual
Property Rights. Subject to Customer's rights under and except as otherwise set forth in this Agreement,
Service Provider will have the exclusive right to own, use, hold , apply for registration for, and register its
Intellectual Property Rights during the term of this Agreement and after the expiration or termination of
this Agreement, in any country worldwide. Customer shall not use any brands or trademarks to identify
any component of the Right to Use other than those designated by Service Provider.
6. Service Level Commitment.
a . Availability . Service Provider intends to provide Availability of any services required hereunder during
99.9% of each month during the term of this Agreement, where "Avai lability " refers to any User's ability
to access and run the Customer Application, and as further defined in Section 6(b) below. During each
month where Service Provider fails to achieve the aforementioned leve l of service, the fees due to
Service Provider by Customer will be reduced by 1 % for each 1 % loss in "Availability", up to a maximum
of a 5% reduction in fees.
b. Availability Defined. "Ava ilab il ity " percentage shall be calculated as the product of 100 times a fraction,
the numerator of which is the number of hours that services are provided by Service Provider in a
particular month and the denominator of which is the total number of hours during the month , less the
hours during which service is interrupted for any of the following reasons:
1. Scheduled maintenance windows (which shall include, without limitation, the following): Service
Provider reserves the right to discontinue service for (i) up to six (6) hours each Saturday/Sunday
between the hours of 11 :00 p.m. on Saturday and 6 a .m. on Sunday Mountain Time; and (ii)
between the hours of 6:00 pm and 6:00 am on any day Mountain Time if th e Customer is given
48-hour notice (such notice does not include weekends) of such scheduled maintenance.
2. Reasons of force majeure, incl uding any unforeseen event beyond the control of that Service
Provider that prevents it from performing its obligations under the contract;
3. Issues associated with Customer's personal computers, local area networks or Internet Service
Provider connections;
4. Customer's use of unapproved or modified hardware or software;
5. Issues arising from the misuse of the Customer Application by Customer or any User; and/or
6 . Any inte rrupt io n caused, in any material part, by the actions or failure to act of a TPSP.
c. Limitations. The commitments and obligations set forth in this Section 6 shall not apply if any part of the
Right to Use is not used by Customer in accordance with the specifications or documentation provided
to Customer by Service Provider or to unauthorized actions of Customer or others authorized by
Customer to use the Customer Application under the Agreement. In addition, Service Provider will not
be responsible for any damages or costs incurred by Customer, if any, for any lack of Availability that
occurs during the scheduled maintenance windows set forth in Section 6(b)(1 ).
7. Indemnity.
For all Customer Services performed pursuant to this Agreement, Service Provider agrees to the fullest extent
permitted by law , to indemnify and hold harmless the Customer, its officials, employees, attorneys and officers,
from and against all claims, losses, damages, personal injur ies (including but not lim ited to death), or liability
(including reasonable attorney's fees), directly or ind irect ly arising from, or out of the following: (a) the acts ,
errors, omissions, intentional or otherwise, arising out of or resulting from Service Provider's and its employees,
partners, contractors, and agents performance of the Customer Services and work being performed under this
Agreement; (b) Service Provider's, and its officers , employees, partners, contractors, and agents failure to
SIMPLIFILE I MASTER SERVICES AGREEMENT 4
comply with the provisions of any federal, state, or local laws, ordinance, or regulations applicable to Service
Provider's and its employees, partners, contractors, and agents performance under this Agreement; (c)
Service Provider , and its officers, employees , partners, contractors, and agents infringement on any patent,
trademarks, service mark, logo or copyrights or related rights of a third party which are protected under law and
that would materially affect the Right to Use.
The indemnification provided above shall ob ligate Service Provider to defend at its own expense or to provide
for such defense, at the option of the Customer, of any and all cla ims of liability and all suits and actions of
every name and description that may be brought against the Customer or its employees and officers which may
result from the Customer Services performed under this Agreement whether the Customer Services are
performed by the Service Provider, its employees, contractors, partners and agents or anyone directly or
ind irectly employed by Service Provider. In all events, the Customer shall be permitted to choose legal counsel
of its sole choice, the fees for which shall be reasonable and subject to and inc luded with the indemnificat ion
provided herein.
8. Limited Warranty; Lim itat ion of Liability.
a. Limited Warranty. OTHER THAN THE WARRANTIES ALREADY SET FORTH IN THIS AGREEMENT,
SERVICE PROVIDER MAKES NO OTHER WARRANTIES CONCERNING THE RIGHT TO USE OR
ANY OTHER MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY EXPRESS OR
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-
INFRINGEMENT OF THIRD PARTY RIGHTS OR ARISING OUT OF COURSE OF CONDUCT OR
TRADE CUSTOM OR USAGE, AND SERVICE PROVIDER DISCLAIMS ALL SUCH EXPRESS OR
IMPLIED WARRANTIES. SERVICE PROVIDER MAKES NO WARRANTY OR REPRESENTATION AS
TO THE VALIDITY OR SCOPE OF RIGHT TO USE, OR THAT SAID RIGHT TO USE WILL BE FREE
FROM AN INFRINGEMENT ON PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF
THIRD PARTIES, OR THAT NO THIRD PARTIES ARE IN ANY WAY INFRINGING UPON ANY RIGHTS
INCLUDED IN THE RIGHT TO USE COVERED BY THIS AGREEMENT. FURTHER, SERVICE
PROVIDER HAS MADE NO INVESTIGATION AND MAKES NO REPRESENTATION THAT THE
RIGHT TO USE IS SUITABLE FOR CUSTOMER'S PURPOSES.
b. Limitation of Liability. EXCEPT WITH RESPECT TO GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF SERVICE PROVIDER OR SERVICE PROVIDER'S PERSONNEL ARISING OUT
OF SERVICE PROVIDER'S OBLIGATIONS AS SET FORTH IN THIS AGREEMENT OR SERVICE
PROVIDER'S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 7 ABOVE, AS TO
WHICH THE FOLLOWING LIMIT AT IONS DO NOT APPLY, IN NO EVENT SHALL SERVICE
PROVIDER BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR
LOSS OF PROFITS OR EXPECTED SAVINGS OR OTHER ECONOMIC LOSSES, OR FOR INJURY
TO PERSONS OR PROPERTY) IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT
MATTER.
Notwithstanding anything to the contrary in any Schedule or any other documents or agreements
exchanged between the parties, this Section 8 sets forth the only lim itat ion of liab ility in effect between
the parties.
9. Confidentiality.
a. Treatment of Confidential Information. The parties agree t hat during the term of this Agreement, and for
a period of five (5) years after this Agreement expires or terminates, any Recipient (as that te rm is
SIMPLIFILE I MASTER SERVICES AGREEMENT 5
defined in Section 1 (b) above) receiving Confidential Information of the Discloser ( as that term is defined
in Section 1(b) above) will maintain in confidence such Confidential Information to the same extent such
party maintains its own proprietary information; not disclose such Confidential Information to any third
party without the prior written consent of the other party, except to the extent required by law and only
following written notice to the Service Provider; and not use such Confidential Information for any
purpose except those permitted by this Agreement; provided that Service Provider may use Customer's
Confidential Information as necessary in the performance of Service Providers services for the benefit
of the Customer as set forth in this Agreement..
b. Non-Disclosure of Confidential Information. A Recipient shall take reasonable steps to prevent
unauthorized disclosure or use of Discloser's Confidential Information and to prevent it from falling into
the public domain or into the possession of unauthorized persons. Recipient shall not disclose
Confidential Information of Discloser to any person or entity other than its employees, contractors and
consultants who need access to such Confidential Information in order to affect the intent of this
Agreement. Recipient shall immediate ly give notice to Discloser of any unauthorized use or disclosure
of Discloser's Confidential Information.
c. Virus/Malicious Code Prevention . Service Provider shall use the latest, commercially available virus and
malicious code detection and protection products on all workstations and servers used to provide goods
and services to Customer; and shall report all occurrences of viruses and malicious code that are not
successfully resolved by deployed detection and protection measures on any workstation or server used
to provide goods or services to Customer as soon as possible after discovery.
Service Provider shall promptly notify Customer if it becomes the subject of any regulatory or other
investigation or of any government or other enforcement or private proceeding relating to its data
handling practices.
d. Privacy Laws.
1. "Privacy Laws" means the privacy provisions contained in the Gramm-Leach Bliley Act, Title V,
Subtitle A, 15 U.S.C. § 6801 et seq., ("GLB Act"), the Fair Credit Reporting Act, 15 U.S.C. § 1681
et seq . and all other applicable federal and state privacy and data protection laws and all
implementing regulations thereof.
2. Security. Service Provider shall implement and maintain, at all times during the term of this
Agreement, commercially reasonable security so as to protect Customer data . Service
Provider's security policies shall at a minimum contain provisions for the following: (A) a privacy
policy and an information security program containing commercially reasonable and appropriate
measures to maintain the security of Customer's Confidential Information, including without
limitation, the data and Nonpublic Personal Information under the GLB Act, to comply with the
objectives of the Privacy Laws and in conformance with the information and physical security
procedures described in Service Provider's current security procedures, already provided to
Customer . Service Provider shall comply with all of its security policies and procedures provided
by Service Provider for Customer's review. In no event shall Service Provider's security
procedures with respect to such Confidential Information be less than that required by the
applicable legal requirements, including without limitation the Privacy Laws; (B) in no event shall
Service Provider reduce or diminish the security measures that it uses to protect Customer's
Confidential Information, including without limitation the data and Nonpublic Personal
Information, stored therein as of the Effective Date of this Agreement; (C) access to and use of
Customer data must be in accordance with this Agreement, and loca l legal and regulatory
requirements for trade and business secrecy, and data privacy and protection, including the
federal GLB Act, the federal Fair Credit Reporting Act ("FCRA") and the Securities and Exchange
Commission Privacy of Consumer Financial Information ("Regulation S-P") where applicable;
(D) all non-public Customer data must be secured using industry standard encryption technology,
SIMPLIFILE I MASTER SERVICES AGREEMENT 6
such as 128-bit encryption, PGP key-based encryption or password protected zip files, when: (i)
stored on transportable media without physical access protection, (ii) transmitted over the
Internet, (iii) transmitted over networks to which third parties may have access (e.g., shared
backbones), or (iv) accessed remotely; (E) Service Provider shall have and enforce policies and
procedures for secure information disposal. Where consumer report information is concerned,
disposal methods must be in compliance with local legal, regulatory and federal requirements
including Rule 30(b) of SEC Regulation S-P; (F) backup media containing non-public Customer
information must be maintained and stored in a secure safe location and in accordance with
company documented records retention policies; and (G) areas, buildings and rooms which
house critical systems and networks supporting Customer data or applications must be protected
with physical security measures that prevent unauthorized persons from gaining access.
"Nonpublic Personal Information" is defined herein as personally identifiable financial information
(i.e., information that is provided by a consumer in order to obtain a financial product or service,
results from a transaction with a bank involving a financial product or service, or is otherwise
obtained by the bank in connection with providing a financial product or service to the consumer)
that is not publicly available.
j. Publicly Recorded Data. Customer acknowle dges that (1) either Service Provider or TPSPs of
Service Provider may provide recorded data filed through the Customer Application to third
parties associated with a transaction and (2) that such recorded data does not consist of nor
contain Confidential Information as they are publicly filed by permission of Customer.
k . TPSP Services. Customer acknowledges that part of the services provided in the Right to Use include
services provided by TPSPs. Copies of TPSP privacy policies, warranties and support particulars can be
found at https://simplifile .com/thirdpartyservices and hard copies of the same can be obtained directly
from TPSP at the contact information listed. Customer hereby acknowledges that Service Provider makes
no warranties, express or implied, regarding any services provided by any TPSP hereunder including,
without limitation, any warranties as to privacy and security of information and any statement as to support
services availability.
10. Term and Termination.
a. Term. Unless terminated early in accordance with the provisions of Sect ion 1 0(b) or 1 0(c), this Agreement
shall take effect on the date of its acceptance by Service Provider and sha ll continue in effect for three
(3) years, which may be renewed for two additional one ( 1) year terms by mutual agreement of the parties .
b. Termination by Customer. Customer may terminate this Agreement as follows:
C.
1. Upon sixty (60) days' written notice to Service Provider for convenience ;
2 . If Service Provider defaults in its indemnification obligations under Section 7;
3. If Service Provider becomes insolvent, makes an assignment for the benefit of creditors, or has a
petition in bankruptcy filed for or against it. Such termination shall be effective immediately upon
Customer giving written notice to Service Provider;
4. If, in the reasonable opin ion of Service Provider, Customer (i) takes any action, or fails to act, that
will likely cause substantial financial harm or substantial injury to the reputation of Service Provider ,
or (ii) engages in any willful violation of any law, rule or regulation applicable to Customer's duties
hereunder, or material breach of any provision of this Agreement.
5. Except as provided in subparagraphs (1) -(4) above, if Service Provider defaults in the
performance of any obligations under th is Agreement and the default has not been remedied
within thirty (30) days after the date of notice in writing of such default by Service Provider.
Termination by Service Prov ider. Service Provider may terminate this Agreement as follows:
SIMPLIFILE I MASTER SERVICES AGREEMENT 7
1. If Customer does not make a payment due hereunder and fails to cure such non-payment (including
the payment of interest in accordance with Section 4(a)) within thirty (30) days after the date of
notice in writing of such non-payment by Service Provider;
2. If Customer defaults in its indemnification obligations under Section 7;
3. If Customer becomes insolvent, makes an assignment for the benefit of creditors, or has a petition
in bankruptcy filed for or against it. Such termination shall be effective immed iately upon Service
Provider giving written notice to Customer;
4. If, in the reasonable opinion of Service Provider, Customer (i) takes any action, or fails to act, that
will likely cause substantial financial harm or substantial injury to the reputation of Service
Provider, or (ii) engages in any willful violation of any law, rule or regulation applicable to
Customer's duties hereunder, or material breach of any provision of this Agreement.
5. Except as provided in subparagraphs (1 )-(4) above, if Customer defaults in the performance of
any obligations under this Agreement and the default has not been remedied within thirty
(30) days after the date of notice in writing of such default by Service Provider; or
6. In addition to the foregoing, Service Provider shall have the right to terminate this Agreement as to
a specific Customer Service where (i) the Customer Service in question relies on a service or
services being provided, in material part, by a TPSP; (ii) where such TPSP discontinues such
service or services and (iii) as a result of the discontinuation of the TPSP service or services
Service Provider is unable to provide the Customer Service as set forth in this Agreement.
7. Upon sixty (60) days' written notice to the Customer for convenience.
d. Rights Upon Expiration. Neither party shall have any further rights or obligations upon the expiration of
this Agreement upon its regularly scheduled expiration date other than the obligation of Customer to
make any and all payments for the final monthly period based on Service Provider's final report. Provided,
however, that upon such expiration, each party shall be required to continue to abide by the following
sections of this Agreement: (1) all non-disclosure and confidentiality obligations as described in Section 9;
(2) Service .Provider's obligation to indemnify Customer as described in Section 7; (3) payment of fees
for Customer Service previously rendered to the satisfaction of the Customer as set forth in Sections 3,
4, 10(c) and 10(d); and (4) any liability lim itatio ns set forth in Section 8.
e. Rights Upon Termination. Notwithstanding any other provision of this Agreement, upon any termi na tio n
of this Agreement prior to the regularly scheduled expiration date of this Agreement, (1) the Right to Use
granted hereunder shall terminate and revert to Service Provider; (2) no party shall have any further right
to develop, manufacture or market any part of the Confidential Information of the other party; and (3) each
party shall promptly return all materials, samples, documents, information, and other materials that
embody or disclose any part of the Confidential Information of the other party; provided, however , that no
party shall be obligated to provide the other party with any information that the party can show it
independently developed. Any such termination shall not relieve either party from any obligations accrued
to the date of such termination. Upon such termination, each party shall be required to abide by its
nondisclosure obligations as described in Section 9 which shall survive such termination. Each party's
obligation to indemnify the other party as described in Section 7, and Sections 5, 8 and 11 shall also
survive the termination of this Agreement.
f. Suspension Rights. Service Provider may elect to suspend service to Customer, rather than terminate
this Agreement, at Service Provider's sole election, upon five (5) days' notice to Customer if Customer's
account becomes delinquent as a result of undisputed charges (meaning, any payment of Fees set forth
in an Invoice is not paid within the t ime frame set forth in the applicable Services Addendum, as amended
or added to). Such suspension may be lifted at any time at the discretion of Services Provider; however,
SIMPLIFILE I MASTER SERVICES AGREEMENT 8
once all past due payments hereunder have been brought current, Service Provider shall lift the
suspension immed ia tely.
g. Return of Customer Data. Customer may, at any time, request a return of all of Customer's data, subject
to the following:
1. Service Provider will provide online storage for Customer's data for a period of two (2) years after
its creation date at no additional cost to Customer. Should Customer require additional long-term
storage, Service Provider shall charge the customer $0.20 per loan transaction per year for such
storage.
2. Should Customer wish to have any such data copied to another form of media other than the form
in which it is stored with Service Provider at the end of the online storage term, Service Provider
agrees to transfer such data as requested to a portable magnetic media or Secure FTP fitting
specifications provided by Service Provider for a "per incident" fee of $1,500.
3. Service Provider will notify Customer via email of any of Customer's data that is due to be destroyed
at least ten (10) days before such destruction. By written confirmation, Customer can then
choose to extend the online storage term for said data, or request the transfer of said data to
portable storage media by agreeing to pay the fees referenced in Section 1 0.g(1) and (2). If such
written notification is not received from Customer within the ten (10) period referenced above,
Service Provider shall thereafter destroy such data and provide written certification to Customer
of such.
4. Any other terms and conditions provided by Service Provider.
11. Assignment; Successors.
a. Assignment. This Agreement may not be assigned or otherwise transferred (whether voluntarily, by
operation of law or otherwise) by either Party w ithout the prior written consent of the other Party which
shall not be unreasonably withheld; provided however that Customer may, without such consent, assign
this Agreement and its rights and obligations hereunder to an Affiliate or in connection with the transfer
or sale of all of its business, or in the event of its merger, consolidation, change in control, or other similar
transaction. Any and all other assignments of this Agreement or any rights granted hereunder by
Customer without the prior written consent of Service Provider are void.
b. Binding Upon Successors and Assigns. Subject to the limitations on assig nment herein, this Agreement
shall be binding upon and inure to the benefit of any successors in interest and assigns of Service
Provider and Customer. Any such successor or assignee of Customer's interest shall expressly assume
in writing the performance of all the terms and conditions of this Agreement to be performed by Customer
and such written assumption shall be delivered to Service Provider as a condition to Service Provider's
agreement to consent to any such assignment.
12. General Provisions.
a.
b.
Independent Contractors. The relationship between Service Provider and Customer is that of
independent contractors . Service Provider and Customer are not joint venturers, partners, principal and
agent, master and servant, employer or employee, and have no other relationship other than independent
contracting parties. Service Provider and Customer shall have no power to bind or obligate each other in
any manner, other than as is expressly set forth in this Agreement.
Entire Agreement; Modification. This Agreement and all of the attached Addenda set forth the entire
agreement and understanding between the parties as to the subject matter hereof, and supersedes all
prior or contemporaneous agreements or understandings, whether oral or written . There shall be no
amendments or modifications to this Agreement, except by a written document that is signed by both
parties.
SIMPLI FILE I MASTER SERVICES AGREEMENT 9
c. Florida Law. This Agreement shall be construed and enforced in accordance with the laws of the State
of Florida without regard to the conflicts of laws principles thereof. Each party hereby irrevocably submits
to the exclusive jurisdiction and venue of the State courts located in Seminole County, Florida (or any
courts residing therein with jurisdiction), and the Federal courts located in Orlando, Florida, for any action
or proceed ing arising hereunder, and waives any right to contest or otherwise object to such jurisdiction
or venue.
d. Headings. The headings for each article and section in this Agreement have been inserted for
convenience of reference only and are not intended to limit or expand on the meaning of the language
contained in the particular art icle or section.
e. Severability. Should any one or more of the provisions of this Agreement be held invalid or unenforceable
by a court of competent jurisdiction, it shall be considered severed from this Agreement and shall not
serve to invalidate the remaining provisions thereof. The parties shall make a good faith effort to replace
any invalid or unenforceable provision with a valid and enforceable one such that the objectives
contemplated by them when entering this Agreement may be realized.
f. No Waiver. Any delay in enforcing a party's rights under this Agreement or any waiver as to a particular
default or other matter shall not constitute a waiver of such party's rights to the future enforcement of its
rights under this Agreement, excepting only as to an express written and signed waiver as to a particular
matter for a particular period of time .
g. Name. Whenever there has been an assignment by Customer as permitted by this Agreement, the term
"Customer" as used in this Agreement shall also include and refer to, if appropriate, such assignee or
subcontractor.
h. Attorneys' Fees. In the event of a dispute between the parties hereto or in the event of any default
hereunder, each party shall bear the cost of its own attorney's fees.
i. Force Majeure. Neither party shall be liable to the other for failure or delay in the performance of a required
obligation if such failure or delay is caused by riot, fire, flood, earthquake, natural disaster, electronic virus,
electronic attack or infiltration, internet disturbance, government act or other similar cause beyond such
party's (the "Affected party") control (collectively, a "Force Majeure Event"), provided that Affected party
gives prompt notice of such condition, uses reasonable efforts to resume its full performance as soon as
possible, and provided further that the other party (the "Non-Affected party") may terminate this
Agreement if such condition continues for a period of thirty (30) days. During the Force Majeure Event,
the Non-Affected party may similarly suspend its performance obligations, until such time as the affected
party resumes its performance obligations.
j . Notices. Any notices required by this Agreement shall be in writing, shall specifically refer to this
Agreement and shall be sent by registered or certified airmail, postage prepaid, or by email, telefax,
telex or cable, charges prepaid, or by overnight courier, postage prepaid and shall be forwarded to the
respective addresses set forth below unless subsequently changed by written notice to the other party:
For Service Provider: Simplifile, LC
with a copy to :
SIMPLIFILE I MASTER SERVICES AGREEMENT
5072 North 300 West
Provo, Utah 84604
Attention: Auri Burnham
Fax No.: 801.373.1417
Email: aburnham@simplifile.com
MacArthur, Heder & Metler, PLLC
4844 North 300 West 3rd Floor
Provo, Utah 84604
Attention: K. Paul MacArthur
10
For Customer:
Fax No.: 801.377.1901
City of Winter Springs
1126 East State Road 434
Winter Springs
Attention: Andrea Lorenzo-Luaces
Fax No.: 407-327-4753
Email: _cityclerkdepartment@winterspringsfl.org
Notices shall be deemed delivered upon the earlier of (1) when received; (2) three (3) days after deposit
into the U .S. Mail; (3) the date notice is sent via email, telefax, telex or cable; or (4) the day immediately
following de livery to overnight courier (except Sunday and holidays).
k. Press Release. The parties agree to issue a joint press release regarding this Agreement. However,
Service Provider agrees not to release the press release without the prior written approval of
Customer, which approval shall not be unreasonably withheld.
I. Terms of Use. The parties acknowledge that before any customer or other party accesses the
Customer services through the Customer Application, said customer or third party is agreeing to
those Terms of Use of Service Prov ider set forth at Simplifile.com . In the event of a conflict between
the terms of this Agreement and the Terms of Use, the terms of this Agreement shall govern.
m . Public Records. Pursuant to Chapter 119, Flor ida Statutes, Service Provider agrees that any
records, documents, transactions, writings, papers, letters, computerized information and
programs, maps, books, aud io or video tapes, films, photographs, data processing software,
writings or other material(s), regardless of the phys ical form, characteristics, or means of
transmission, of Service Provider related, directly or indirectly, to the services provided to the
Customer under this Agreement and made or received pursuant to law or ordinance or in
connection with the transaction of official business by the Customer, may be deemed to be a
public record, whether in the possession or control of the Customer or the Serv ice Provider. Said
records, documents, transactions, writings, papers, letters, computerized information and
programs, maps , books, aud io or video tapes, films, photographs, data processing software,
writings or other material(s), regardless of the physical form, characteristics, or means of
transmission of Service Provider are subject to the provisions of Chapter 119, Florida Statutes,
and may not be destroyed without the specific written approval of the Customer's designated
custodian of public records. Upon request by the Customer, the Service Provider shall promptly
supply copies of said Public Records to the Customer. All books, cards, registers, receipts,
documents, and other papers in connection with this Agreement shall at any and all reasonable
times during normal business hours of the Service Provider be open and freely exhibited to the
Customer for the purpose of examination and/or audit. Fai lure by Service Provider to grant such
access and comp ly w ith public records laws and/or requests shall be grounds for immediate
un ilateral cancellation of this Agreement by the Customer upon delivery of a written notice of
cancellation. If the Service Provider fails to comply with this Section, and the Customer must
enforce this Sect ion, or the Customer suffers a third party award of attorney's fees and/or
damages for v iolating Chapter 119, Florida Statutes, due to Serv ice Provider's failure to comply
with this Section, the Customer shall collect from Service Provider prevailing party attorney's fees
and costs, and any damages incurred by the Customer, for enforcing this Section against Service
Provider . And, if applicable, the Customer shall also be entitled to reimbursement of all attorneys'
fees and damages which the Customer had to pay a third party because of the Service Providers
failure to comply with this Section. The te r ms and conditions set forth in this Section sha ll survive
the termination of this Agreement .
SIMPLIFILE I MASTER SERVICES AGREEMENT 11
The parties have executed this Agreement by their duly authorized representatives as of the date set forth
above.
SERVICE PROVIDER:
By:
Name (print): _____________ _
Job Title:
Date:
CUSTOMER: ~~~'-By: -~--------.1------:;.z==.r--____ _
Name (print): -~~i
Job Title: C«v Maooav
Date: Oc<h:bere ~q aa,B
SIMPLIFILE J MASTER SERVICES AGREEMENT 12