THIS MASTER SERVICES AGREEMENT (“Agreement”) shall become effective as of the effective date of the first Statement of Work that incorporates it by reference, and shall govern all SOWs that reference it. It is entered into by and between Association (“Client”) and 360Factor Consulting, LLC (“Vendor”), each a “party” and together the “parties”.
Version: July 8, 2025
WHEREAS
Client desires Vendor to provide certain Software and Services to provide a learning management system and for such other purposes as set forth in this Agreement and any SOW; and Vendor specializes in providing the Software and Services and desires to perform the Services on behalf of Client; and NOW, THEREFORE, in consideration of the premises hereof and other good and valuable consideration, the parties agree as follows:
1.1. “Documentation” means any user manuals, technical manuals, training manuals, specifications or other explanatory or descriptive materials of any type, whether in paper or electronic form, provided or published by Vendor with respect to the Software.
1.2. “Personal Information” means any personally identifiable information or data concerning or relating to Client’s employees, agents, members, or customers that may be used to uniquely identify or contact such persons and like information as such terms are defined under any applicable privacy law of the United States or any other country if applicable, and state privacy laws, if applicable (collectively, “Privacy Laws”).
1.3. “Services” shall be specified in each Statement of Work and shall include any Software and/or Deliverables.
1.4. “Software” is any software, whether it is owned by Vendor directly or licensed separately from a third party that is necessary for Client to effectively utilize the Services. “Software” shall be included in the definition of “Services”. Additionally, Software means computer programs identified in a SOW together with input and output formats, object code, program listings, data models, flow charts, outlines, narrative descriptions, and Documentation. Software shall include all authorized reproductions, corrections, Upgrades and Updates.
1.5. “Service Level Adjustment Fee” shall mean those amounts that Vendor is required to pay to Client in connection with the failure to meet the Service Levels described in Exhibit B.
1.6. “Vendor Personnel” shall mean the employees, subcontractors and independent contractors of Vendor, as well as the employees and independent contractors of Vendor's subcontractors.
1.7. “Updates” shall mean all revisions, updates, Upgrades, modifications, corrections, releases (to include all point, minor and major new releases), versions, fixes, program temporary fixes, replacement products, revised Documentation and enhancements to the Software.
1.8. “Upgrade” shall mean a new version of the Software that includes enhancements and new functionality, and is designated by a change in the digit to the left of the decimal point (i.e., a change from version x.x to y.x) and any upgrades to the associated Documentation.
2.1. Statements of Work. Vendor shall provide Client with the Services as described from time to time in a Statement of Work, attached hereto as “Exhibit A” Any reference to “Agreement” shall include the applicable SOW. In the event of any conflict between the terms of this Master Service Agreement and the terms contained in any SOW, exhibit or attachment to this Master Service Agreement, the terms of the SOW, exhibit or attachment shall prevail. All agreements must be documented in writing.
2.2. Application of Updates and Releases. Vendor is responsible for the application of all Updates and Releases to the Software. For all new Updates and new Releases, Vendor will give Client advanced written notice in enough time to plan, train and test all Updates and new Releases in Client’s environment. The amount of time required for the advanced written notice may vary based upon the complexity and new functionality in any given new Release. In no event however, shall Vendor give Client less than sixty (60) days prior written notice of a new Update or new Release that is planned for implementation.
3. Initial Acceptance of Services. Following implementation of the Services, there shall be an acceptance period as set forth in the SOW (“Acceptance Period”) during which time Vendor must demonstrate its ability to provide the Services in a manner satisfactory to Client including without limitation providing the functionality detailed in a SOW and in accordance with the Service Levels described in the applicable SOW. The “Acceptance Period” starts when the LMS is officially launched in production. The Acceptance Period is 180 days. Vendor’s failure to provide the functionality described in an SOW, to meet any Service Level or to perform any Service in a manner reasonably acceptable to Client shall be referred to as a “Non-Conformity”. At the end of the Acceptance Period, if there are no Non-Conformities found by Client, Client shall provide written notice of acceptance. If any Non-Conformity is found by Client during the Acceptance Period, Client shall notify Vendor as soon as is practical of such Non-Conformity. Vendor shall then have seven (7) days with which to remedy the Non-Conformity as reported by Client. Client shall then have fourteen (14) days with which to verify Vendor’s correction of the Non-Conformity. If there are outstanding Non-Conformities at the end of the Acceptance Period, the reporting, correction and acceptance process described above shall continue until such time that there are no further Non-Conformities. The Acceptance Period shall be extended for the number of days following the date of Client’s notice of a Non-Conformity and prior to Vendor’s correction of the Non-Conformity in a manner that is satisfactory to Client. When such demonstration has been satisfactorily completed, Client shall provide Vendor with written notice of initial acceptance which shall not be unreasonably withheld. The date on which Client provides such notice shall be the “Acceptance Date” and shall also be the end of the Acceptance Period. If Vendor fails to obtain initial acceptance in one hundred eighty (180) days, Client shall have the right and option to cancel this Agreement and obtain repayment in full of any and all payments made to Vendor in connection with this Agreement and any SOW. In no event shall Client’s receipt or use of the Services during the Acceptance Period constitute acceptance of the Services.
4. Service Level Agreement.
4.1. Service Level requirements and the remedies for non-performance shall be detailed on the attached Exhibit B (“Service Level Agreement” or “SLA”). If Client provides Vendor with notice of Vendor’s failure to meet a Service Level, Vendor shall pay the Service Level Adjustment Fee detailed in the SOW or on Exhibit B with respect to such Service Level.
4.2. Root-Cause Analysis. As applicable, with respect to each Vendor failure to provide the Services in accordance with the applicable Service Levels, Vendor shall, as soon as reasonably practicable but not later than five (5) days after such failure (or within such timeframe as set forth in a SOW), (a) perform a root-cause analysis to identify the cause of such failure and (b) provide Client with a report detailing the cause of, and procedure for correcting, such failure. Upon Client’s approval of such corrective procedure, Vendor shall implement such procedure at no cost to Client unless otherwise agreed by the parties.
4.3. Continuous Improvement and Best Practices. In addition to Vendor’s obligations with respect to any Service Levels set forth in a SOW or Exhibit B, as applicable, Vendor shall on a continuous basis (a) identify opportunities to implement new technologies that shall improve the Services and the Service Levels and (b) identify and apply proven techniques and tools from other installations within its operations that would benefit Client. Vendor shall, from time to time, include updates with respect to such improvements, techniques and tools in the reports provided to Client pursuant to this Agreement.
5.1. License Grant. Vendor hereby grants to Client a nonexclusive, irrevocable during the Term, license to use and access the Services, including any Software, for the duration of this Agreement (“License”). Client may: (i) use the Services and Software in Client’s business and to allow end users to access and use the Services and Software; (ii) permit use of the Services and Software by one or more third parties, including, without limitation, to perform information processing, disaster recovery, disaster recovery testing or other services for Client, provided such third parties agree to keep Vendor’s Confidential Information confidential; and (iii) permit use of the Services and Software by persons with authorized access to Client’s computer system, including, but not limited to, agents, auditors, temporary personnel, contracted personnel, Clients, consultants and suppliers.
5.2. Ownership. Vendor owns all right, title and interest in and to the Software and hardware tools, ideas, concepts, methodologies, processes, inventions and utilities developed by or on behalf of Vendor (“Vendor Property”). The preceding notwithstanding, Vendor grants Client a license to use, in conjunction with the Services and for such term as Client is licensed to use the Services, any work product or other tangible deliverables provided under this Agreement that are not Deliverables as defined herein. Excluding any Vendor Property, all products, reports or other deliverables created, provided or delivered as part of the Services (collectively, “Deliverables”) shall be the sole and exclusive property of Client. Client shall hold all right, title and interest to such Deliverables.
5.3. Copies and Documentation. Client may utilize the Software, at no additional charge, to the extent reasonably required for training and testing purposes and make such copies of the Documentation as is reasonably necessary to facilitate Client’s permitted uses of the Software. Additionally, the Documentation must explain the use of all functionalities of the Software being delivered, and must be sufficient to enable Client to test fully and use the Software
6.1. Fees. In exchange for Vendor’s provision of the Services, Client shall pay the fees set forth in the relevant SOW (“Fees”). Unless otherwise stated in the applicable SOW, Fees may not be increased during the term of any SOW. If a SOW provides for an initial and renewal terms, Vendor may increase Fees prior to any renewal term, but only with no fewer than one hundred twenty (120) days’ prior written notice and by no more than three percent (3%) over the immediately preceding prior term’s Fees per annual renewal term.
6.2. Payment/Invoice. Unless otherwise stated in a SOW, Vendor will provide Client with a detailed invoice on the last day of each month and Client will remit payment Net30 days from its receipt of a proper and valid invoice. Vendor shall use commercially reasonable efforts to ensure the accuracy of invoices. Client will provide written notification of any disputed amount. The parties agree to use commercially reasonable efforts to resolve the disputed items.
6.3. Expenses. If a SOW specifies that Client is to pay Vendor's expenses for travel, meals and lodging, Client shall reimburse Vendor for actual, necessary and reasonable expenses for: (a) travel by non-local Vendor personnel to a site specified by Client; and (b) meals and lodging for such non-local personnel while performing such Services. Such expenses shall not under any circumstances include airfare other than coach. Lodging shall not include charges for long distance phone calls billed to the room or other incidental charges. Client will not be billed for travel time. Vendor shall submit reimbursement requests to Client monthly as part of Vendor's regular invoice for Services; provided, however, Vendor must also submit the original receipt for each expense for which Vendor seeks reimbursement. The original receipt shall be the establishment receipt or other itemized receipt rather than a credit card receipt. Client shall have no obligation to reimburse Vendor expenses not documented with a proper receipt.
6.4. Refund and Re-Performance. Should Vendor fail to provide Services in accordance with the Service Level Agreement (Exhibit B), then Vendor shall at its expense but at Client’s discretion, and in addition to any other rights or remedies available to Client under the Agreement, at law or in equity, refund to Client all amounts paid for the failed Services and all other Services materially or adversely affected or re-perform the failed Services at no additional charge until either (i) Client instructs Vendor to cease providing Services, in which case Client can terminate the relevant SOW, or (ii) Vendor provides Services in a manner consistent with this Agreement.
7.1. Term. This Agreement shall be effective as of the Effective Date and shall remain in full force and effect for the longer of three years or until the expiration or termination of all applicable SOWs, unless terminated as specified below. Each SOW shall provide a term for such SOW.
7.2. Termination for Cause. Either party may terminate this Agreement and any SOW for a material breach by the other party which is not cured within the shorter of thirty (30) days after the receipt by the breaching party of written notice and reasonable description of the breach or when it becomes evident that cure within such thirty (30) day period is impossible. In the event of such termination by Client, Vendor shall provide a pro-rated refund of amounts paid by Client but not yet incurred.
7.3. Termination Without Cause. Prior to launch of the learning management system (“LMS”) as set forth in the SOW, Client may terminate the SOW and this Agreement, without cause, with thirty (30) days’ prior written notice to Vendor. In the event of such termination by Client, Vendor shall provide a pro-rated refund of amounts paid by Client but not yet incurred
7.4. Survival. Sections 5.2, 7.4-7.6, 9, 14, 16, 17, 18, and 20 of this Agreement and any other sections which expressly survive termination of this Agreement, or which, by their nature, should reasonably survive termination of this Agreement, shall survive.
7.5. Transition Assistance. If this Agreement is terminated with or without cause, each party shall cooperate with the other party and Vendor shall provide all reasonable assistance to effect an orderly transfer of the Services to another vendor of Client’s sole choice. That vendor may be a third party or Client’s internal vendor. In the event the Services are transferred, the parties agree that the transition plan will be a critical component of such transfer. The terms of any transition plan shall be attached hereto as Exhibit E and incorporated herein by this reference. Vendor shall allow Client access to any and all information that will assist in the orderly transition of the Services to another party.
7.6. Continuation of Performance. Due to the critical nature of the Services to Client’s continued business operations, and the absolute reliance by Client on Vendor to perform said Services on a timely basis: (a) Vendor acknowledges that Client’s remedies at law for Vendor’s breach of its obligations under this Agreement will be inadequate, that Client may be irreparably harmed by any such breach, and that in the event of any such breach or threatened breach, Client shall be entitled to specific performance or any type of preliminary, temporary or permanent injunctive relief; and (b) Vendor assumes an independent obligation, in the event Vendor claims Client has breached any material obligation under this Agreement, to continue performance of Vendor’s obligations under this Agreement for one hundred twenty (120) days (sixty (60) days in the event of a payment breach) after Vendor gives Client written notice of such alleged default. The undertaking of said independent obligation is without prejudice to any rights or remedies Vendor may otherwise have in connection with any dispute between Vendor and Client. If Client cures or otherwise resolves Vendor’s claim of a Client breach within the one hundred twenty (120)-day or sixty (60)-day period, whatever the case may be, then Vendor shall continue to provide Services under this Agreement unless otherwise directed by Client.
8.1. Disaster Recovery. Vendor warrants that it has and will maintain in effect at all times during the term of this Agreement a disaster recovery plan that will allow Vendor to resume full performance of the Services no more than twenty-four (24) hours after an interruption due to a disaster or other circumstance outside Vendor’s control. If Vendor fails to restore the Services within twenty-four (24) hours after an initial disruption, or if there are more than two interruptions of the Services during any twelve (12)-month period, Client at its option may declare this Agreement immediately terminated for cause by giving written notice to Vendor, and Vendor shall work with Client in good faith to transition the Services as provided for herein.
8.2. Back-up and Protection of Data and Materials. Unless otherwise specified in a SOW, to ensure uninterrupted operation in the event of an error or disaster, Vendor shall provide off-site back-up storage on a daily basis of all Client’s data, which will be provided to Client upon request. “Off-site back-up is defined as any other physical facility separate from the primary facility’s physical location. Backing up the data from one Amazon data center to another data center is considered “off-site”. In addition, Vendor shall establish and maintain such other precautions as are necessary and adequate to prevent the destruction, loss or erroneous alteration of Client’s data in the possession of Vendor and to prevent unauthorized access by third parties to Client’s files, data and programs. Without limiting the foregoing, such precautions shall at a minimum conform to those set forth in Exhibit C. If Client requests that Vendor implement additional security measures, Vendor shall not unreasonably refuse or delay implementation of such measures. Additionally, (1) Vendor employees, agents and/or subcontractors will not attempt to access, or allow access to, any Client data or Personal Information which they are not permitted to access under this Agreement. If such access is attained, Vendor will immediately notify Client of such non-permitted access; and (2) Vendor is expressly prohibited from using any Personal Information obtained under this Agreement, to contact or market to employees (outside of the context of this Agreement or any SOW, except that Vendor is allowed to use such Personal Information to market to a limited set of employees involved in managing the Services covered under this Agreement or any SOW), customers or prospects of Client through any means and/or for any other purpose. Vendor agrees that such Personal Information will not be given to any third party for any use whatsoever.
8.3. Reconstruction of Data. If any Client documents, files, data or programs are lost or destroyed due to any disaster, any act or omission of Vendor, or any breach by Vendor of an obligation under this Agreement, Vendor shall, at its own expense, promptly reconstruct such documents, files, data or programs from the back-up materials Vendor is required by this Agreement to maintain. Vendor shall provide priority allocation of the time and resources necessary to promptly complete such reconstruction.
8.4. Ownership and Treatment of Client Data. Client data will be and remain, as between the Parties, the property of Client. Vendor will not possess or assert any lien or other right against or to Client data. No Client data, or any part thereof, will be commercially exploited by or on behalf of Vendor. Client shall own and retain all right, title and interest, including all intellectual property rights, in and to all Client data and any information submitted to the applications by its users that is not otherwise Vendor’s Confidential Information. Vendor acknowledges and agrees that notwithstanding any reformatting, modification, reorganization or adaptation of the Client data (in whole or in part) during its incorporation, storage or processing, or the creation of derivative works from the Client data, the Client data will remain as such and will be subject to the terms and conditions of this Agreement. This Agreement does not grant to Vendor any license or other rights, express or implied, in the Client data, except that Client grants to Vendor a limited, non-transferable, non-exclusive, non-sub-licensable license to Client data for the sole purpose of performing the Services and Vendor obligations under this Agreement.
8.5. Security of Data. Vendor will physically secure and maintain control over all paper and electronic media (e.g., computers, electronic media, paper receipts, paper reports, and faxes) that contain Client data or Personal Information. Vendor agrees to store and process all Client data only in the continental United States. Without limiting any prohibitions or obligations regarding the treatment of Personal Information, at all times during and after the Term of this Agreement, Vendor shall use, handle, collect, maintain, and safeguard all Personal Information in accordance with a Privacy Policy reasonably acceptable to Client and consistent with the requirements articulated in this Agreement, or any Privacy Laws which may be in effect during the Term of this Agreement as it concerns the subject matter of this Agreement. Vendor further acknowledges that it alone is responsible for understanding and complying with its obligations under the Privacy Laws.
8.6. Leaks. Vendor will promptly notify Client of any actual or potential exposure or misappropriation of Client Data or Personal Information (any “Leak”) with 24 hours of the Leak coming to Vendor’s attention. Vendor will cooperate with Client and with law enforcement authorities in investigating any such Leak, at Vendor’s expense. Vendor will likewise cooperate with Client and with law enforcement agencies in any effort to notify injured or potentially injured parties, and such cooperation will be at Vendor’s expense, except to the extent that the Leak was caused by Client. The remedies and obligations set forth in this Subsection are in addition to any others Client may have.
Vendor shall provide to Client the maintenance and Support services described herein with respect to the Services, including, but not limited to, any and all Updates, upgrades, new Releases, patches, fixes and modifications to the Software and Service. Maintenance shall be performed in a timely and professional manner by qualified maintenance technicians familiar with the Services and its operation. Vendor shall provide, upon Client’s request, periodic reports on the status of maintenance issues requested by Client. Vendor shall provide to Client Support consisting of, without limitation, a toll-free number for answers to Client’s questions concerning use of the Services, assistance in solving problems encountered in Client’s use of the Services and for the reporting and correction of suspected problems (“Support”). Support will be provided twenty-four (24) hours a day, seven (7) days per week.
Vendor shall maintain $1,000,000 umbrella insurance for the specific Services being performed. During the term of this Agreement, Vendor shall not permit such insurance coverage to be reduced below such commercially reasonable amounts, expire, or be canceled without reasonable prior written notice to Client. Upon request, Vendor shall provide a Certificate of Insurance to Client.
Vendor is prohibited from subcontracting with third parties to perform any of the Services described herein without the prior written consent of Client. In the event Client provides such consent, such subcontractor, prior to beginning any work, will execute a Non-Disclosure Agreement affording Client substantially the same protection, with respect to confidentiality of its information, as this Agreement. In employing subcontractors, Vendor shall remain responsible for the actions or omissions of its subcontractors.
Client may from time to time hire outsourcers, subcontractors, consultants, or other third parties (“Client Third-Party Contractors”) to perform services or provide products or deliverables, or perform administrative, maintenance and other business and operational functions relating to Client’s businesses. Moreover, the Services provided by Vendor hereunder may be integrated with projects, services, implementations or other deployments for which Client and/or Client Third Party Contractors are providing Services (an “Integrated Project”) and Vendor acknowledges and agrees cooperation among all such Vendors is of utmost importance for the success of the Integrated Project and avoidance of disruption to Client’s business and operations. Vendor shall cooperate with and work in good faith with any Client Third-Party Contractor(s) as requested by Client. Such cooperation may include knowledge sharing of standards, policies, quality assurance and testing processes, as applicable, to ensure smooth deployment of Integrated Projects and/or the smooth and efficient transition of any Services (or component of Services) to, from, or among Client, Vendor and any Client Third Party Contractor. Moreover, nothing in the Agreement shall restrict access by such persons to the Services and/or Deliverables, as applicable, as reasonably required for such Client Third Party Contractors to perform functions for and on behalf of Client; and provided that such Client Third Party Contractors shall use or access the Products and/or Services for Client’s benefit.
13.1. Confidential Information. The term “Confidential Information” means all information provided by one party (the “Disclosing Party”) to the other (the “Receiving Party”) which is marked confidential or which by its nature would be reasonably understood to be confidential except (i) information which the Receiving Party has confirmed is publicly known, so long as it is not publicly known through the acts or omissions of the Receiving Party; or (ii) information that was or becomes available to the Receiving Party on a non-confidential basis from another source provided that such source is not known to be prohibited from transmitting the information by a contractual, legal or fiduciary obligation; or (iii) is independently derived by the Receiving Party without the aid, application, or use of the Confidential Information; or (iv) information that is approved for release by written authorization of the Disclosing Party.
13.2. Disclosure Restrictions. The Receiving Party shall hold the Confidential Information in strict confidence, use or disclose the Confidential Information only as is required in its performance under this Agreement, and disclose the Confidential Information to only those of its employees, agents, or subcontractors who require such disclosure in order to perform hereunder. The Receiving Party shall protect the Confidential Information that is in its possession or control using at least the same means it uses to protect its own Confidential Information, but in any event, not less than reasonable means. The Receiving Party shall take all appropriate action, whether by instruction, agreement, or otherwise, to ensure the protection, confidentiality, and security of the Confidential Information, including any copies thereof, and to satisfy its obligations under this Agreement.
13.3. Compulsory Disclosure. If the Receiving Party receives a request to disclose all or any part of the Confidential Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by a government agency, the Receiving Party shall to the extent legally permissible: (i) promptly notify and consult with the Disclosing Party; (ii) if disclosure of that Confidential Information is required, furnish only such portion of the Confidential Information as the Receiving Party is advised by its counsel is legally required to be disclosed; and (iii) cooperate with the Disclosing Party, at the Disclosing Party’s expense, in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information that is required to be disclosed. A disclosure pursuant to law or government authority order that meets the requirements of this Section will be an authorized disclosure.
13.4. Violation. The Receiving Party shall, within five (5) business days of becoming aware of a use or disclosure of Confidential Information in violation of this Agreement by Receiving Party or by a third party to which Receiving Party disclosed Confidential Information pursuant to this Agreement, report any such disclosure to Disclosing Party. Receiving Party will take steps to mitigate the harmful effect of the non-permitted use or disclosure and include in its report a description of such steps.
13.5. No License. Except as is specifically stated in this Agreement, or as may be reasonably assumed based upon Client’s need to enjoy the benefits of the Services including, without limitation, any information, reports, and work product created by Vendor as part of the Services, no license or right is granted under this Agreement to the Receiving Party to any Confidential Information.
13.6. Return of Confidential Information. At the request of the Disclosing Party, and except for such copies as the Receiving Party is required to retain pursuant to applicable law or regulation or internal record retention policy, the Receiving Party and its Representatives shall:
13.6.1. Return to the Disclosing Party any and all of the Disclosing Party’s Confidential Information and any tangible materials relating thereto, and all tangible copies of such information or materials; and
13.6.2. Provide to the Disclosing Party a signed written statement that all such Confidential Information and other information, copies and materials pertaining thereto have been returned to the Disclosing Party or destroyed in accordance with the terms of this provision.
The obligations of this Subsection to return Confidential Information and copies thereof shall not apply to any electronic copies stored for back-up or archiving purposes that are not readily accessible by the Receiving Party or its Representatives, provided that, the Receiving Party shall not restore any such back-up or archived copies for the purpose of accessing the Confidential Information.
13.7. Equitable Relief. The Receiving Party acknowledges that any disclosure of Confidential Information in violation of this Agreement would be detrimental to the Disclosing Party’s business and that the Disclosing Party shall be entitled, without waiving any other rights or remedies, to seek equitable relief, including injunctions, without posting bond.
14.1. Software Warranties. Vendor represents and warrants that:
14.1.1. the Software will operate as specified in the Documentation, SOW and this Agreement with respect to all material operational and functional capabilities and features (“Warranty”). If Client notifies Vendor of any failure of the Software to conform to the Warranty, Vendor shall promptly, at its sole option and at no expense to Client repair such nonconformity;
14.1.2. if the SOW or Documentation states that the Software will be compatible with specified items, Vendor warrants that the Software will operate properly when used with those items, provided that any applicable instructions or restrictions stated in the Documentation or SOW are complied with;
14.1.3. unless expressly disclosed and described in the SOW, the delivered Software will not contain, and Vendor will not introduce: (1) any code or mechanism which electronically notifies Vendor of any fact or event; or (2) any key, node lock, timeout or other function, implemented by any type of means or under any circumstances, which may restrict Client’s use of or access to any programs, data or equipment based on any type of limiting criteria, including frequency or duration of use; and
14.1.4. the Software will not contain, and Vendor will not introduce, any code which may cause the Software to have the capability to replicate, transmit or activate itself in a manner not described in Vendor’s user Documentation, or the capability to alter, damage or erase any data or programs without control of a person operating the equipment on which it is installed. If the foregoing warranty is breached, then in addition to any other remedies available to Client and without regard to the Section titled Limitation of Liability hereof, Vendor shall at its expense restore all data lost as a result of the breach and/or removing such harmful code.
14.2. Service Warranties. Vendor represents and warrants that:
14.2.1. it will perform all Services in a professional manner, using qualified Vendor Personnel, that all Vendor Personnel performing Services or providing Deliverables hereunder shall have sufficient skill, training and expertise and be fully trained in the subject matters for which they are performing Services or providing Deliverables, and in accordance with the terms of this Agreement, the applicable SOW, all applicable laws, and all applicable industry standards; and the Services will meet the requirements of each SOW and the Service Levels set forth therein or in Exhibit B
14.2.2. it has all right, title, ownership, and other rights required to furnish all Services and tangible items to be provided to Client under this Agreement; it has the right to perform the Services and license the Software to Client as provided in this Agreement and that Client’s use of the Services, Software, and documentation as licensed hereunder will not infringe upon or violate any copyright, patent, trademark or other intellectual property right of any third party, and will not violate any third party’s trade secret, contract or confidentiality rights; and;
14.2.3. it will use commercially reasonable efforts to ensure that the Software and Deliverables delivered under this Agreement will not contain computer viruses or other harmful code such as that commonly known as “trojan horses”, and that such harmful code shall not be introduced by Vendor.
If these warranties are breached, Vendor shall promptly re-perform at Vendor’s sole expense the applicable Services as warranted, and if Vendor fails to perform the applicable Services in a manner conforming to the Agreement within fourteen (14) days of the Client’s notice to Vendor of such failure Vendor shall refund the entire amount paid for the applicable Services and for any other Services that become substantially without value to Client as a result of the breach.
15.1. General. Each Party (the “Indemnifying Party”) agrees to indemnify, defend and hold the other (the “Indemnified Party”) harmless against any third-party claim (including, but not limited to, claims of governmental agencies) arising from the alleged acts or omissions of the Indemnifying Party or its employees, agents or subcontractors in connection with Services to be performed pursuant to this Agreement. The Indemnified Party agrees to notify the Indemnifying Party promptly in writing of any such claim or suit (provided that failure to give prompt written notice of a claim shall not relieve the Indemnifying Party of its obligations under this section unless such failure prejudices a claim), and gives the Indemnifying Party control of the defense and/or settlement of any such action. The Indemnifying Party agrees that it shall not enter into any settlement agreement requiring any action or admission by the Indemnified Party without the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld. The Indemnified Party shall have the right to hire its own counsel solely for the purpose of monitoring any such action, at the Indemnified Party’s own expense. The Indemnifying Party shall not be liable for any costs or expenses incurred by the Indemnified Party without the Indemnifying Party’s prior written authorization.
15.2. Infringement Indemnity. Vendor agrees to defend at its expense, indemnify and hold Client, its officers, directors, agents, employees, successors and assigns harmless from and against any and all loss, cost, damage or liability, including attorney’s fees and costs (including but not limited to costs and expenses of any appellate bond), in connection with any claim by a third party that a Service(s) and/or Software violates such third party’s trademark, copyright, patent, trade secret, or other intellectual property rights or any claim by a third party based upon breach of Vendor’s obligation to maintain the confidentiality of information concerning a third party to whom Vendor has an obligation of confidentiality.
15.3. Modification and Replacement. Should Client be prevented from using any Software, Service and/or Deliverable in connection with any claim by a third party addressed by Subsection (b) above (titled Infringement Indemnity), Vendor shall at its expense, but at Client’s discretion, and in addition to any other rights or remedies available to Client under the Agreement, at law or in equity, (i) modify the infringing Software, Service and/or Deliverable without impairing in any material respect its functionality or performance, so that it is non-infringing, (ii) procure for Client the right to continue to use the Software and/or Deliverable, or (iii) replace the affected Software and/or Deliverable with equally suitable and functionally equivalent, non-infringing software and/or documentation.
16.1. THE LIABILITY OF EITHER PARTY, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IN CONNECTION WITH ANY OF THE SERVICES PROVIDED PURSUANT TO A STATEMENT OF WORK UNDER THIS AGREEMENT, SHALL IN NO EVENT EXCEED THE GREATER OF $1 MILLION DOLLARS ($1,000,000.00) OR THE AMOUNT PAID TO VENDOR FOR SERVICES IN THE PREVIOUS TWELVE (12) MONTHS. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR OTHER ECONOMIC LOSS ARISING UNDER THIS AGREEMENT. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE AND INDEPENDENT OF ANY FAILURE OF ESSENTIAL PURPOSE OF THE REMEDIES PROVIDED HEREUNDER, AND SHALL APPLY WHETHER OR NOT A PARTY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO: (i) ANY BREACH BY A PARTY OF THE CONFIDENTIALITY AND/OR NON-DISCLOSURE PROVISIONS HEREUNDER, (ii) INTENTIONAL MISCONDUCT, (iii) GROSS NEGLIGENCE, AND (iv) TO ANY INDEMNITIES CONTAINED HEREIN.
16.2. Limitation on Warranty. WITH THE EXCEPTION OF EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT OR ANY SOW, VENDOR DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
17.1. Direct Access. If Vendor will have access to any part of Client’s computer systems or networks in the course of performing under this Agreement, the provisions of this Section shall apply. Vendor agrees that each individual having such access: (a) will be assigned a separate log-in ID by Client and will use only that ID when logging on to Client’s system; (b) will log-off Client’s system immediately upon completion of each session of service; (c) will not allow other individuals to access Client’s computer system; and (d) will keep strictly confidential the log-in ID and all other information that enables such access. Vendor will promptly notify Client upon termination of employment or reassignment of personnel with access to Client’s computer system so that log-in IDs may be changed and other necessary preventive measures may be taken by Client to prevent unauthorized access. If Client revises the requirements for access to its computer system, Vendor shall be notified of the changed or additional requirements and shall comply with them as a prerequisite to further access.
17.2. Remote Access. If Vendor will have remote access to any part of Client’s computer system in the course of performing under this Agreement, the provisions of this Section shall apply in addition to all provisions of the Section titled, “Computer System Access”. Vendor agrees: (a) to use only a remote access method approved by Client; (b) to provide Client with the full name of each individual who will have remote access to Client’s computer system and the phone number at which the individual may be reached during dial-in; (c) to ensure that any computer used by its personnel to remotely access Client’s system will not simultaneously access the Internet or any other third party network while logged on to Client’s system. In addition, Vendor warrants and agrees that its personnel will not remotely access Client’s system from a networked computer unless the network is protected from all third-party networks by a firewall that is maintained with all patches up to date and staffed seven (7) days per week, twenty-four (24) hours per day.
18.1. This Agreement, any Statements of Work, Exhibits and any mutually-executed amendments or attachments thereto shall constitute the entire agreement between the parties regarding the subject matter hereof and any prior understanding or representation of any kind regarding the subject matter hereof preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated into this Agreement. Any amendments to this Agreement must be in writing and mutually agreed to by the parties. No delay or omission by either party in exercising any right or remedy hereunder available to that party shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a bar to, or waiver of, any right or remedy on any future occasion. If any provisions of this Agreement shall be for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision hereof, but this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein. The parties acknowledge and agree that they have mutually negotiated the terms and conditions of this Agreement and that any provision contained herein with respect to which an issue of interpretation or construction arises shall not be construed to the detriment of the drafter on the basis that such party or its professional advisor was the drafter, but shall be construed according to the intent of the parties as evidenced by the entire Agreement.
18.2. Absent Client’s advance written consent, Vendor may not use or refer to Client or its trademarks, in any public statement, advertisement or promotion of Vendor, its products or business.
18.3. Time is of the essence in the performance of the terms of this Agreement. Each party will be excused from the performance of its obligations under this Agreement for any period to the extent that it is prevented from performing, in whole or in part, as a result of delays caused by the other party or any act of God, natural disaster, war, civil disturbance, court order or other events beyond the reasonable control of a party, except where such delay was caused by the act or omission of the non-performing party. In the event that a party’s performance is delayed or prevented for a period of ten (10) days or more, the non-affected party may terminate this Agreement upon written notice to the affected party.
18.4. Before initiating any legal action against the other relating to a dispute herein, the parties agree to work in good faith to resolve disputes and claims arising out of this Agreement. If the dispute is not resolved within thirty (30) days of the commencement of informal efforts under this paragraph, either party may pursue legal action. This paragraph will not apply if: (i) expiration of the applicable time for bringing an action is imminent; or (ii) injunctive or other equitable relief is necessary to protect a party’s proprietary rights. This Agreement and all rights and duties hereunder, including but not limited to all matters of construction, validity and performance, shall be governed by the law of Illinois, excluding its choice of law provisions. Venue for any judicial proceeding shall be in the state of Illinois, and any objections or defenses based on lack of personal jurisdiction or venue are hereby expressly waived. Unless this Agreement expressly states that a remedy is exclusive, no remedy made available under this Agreement is intended to be exclusive.
18.5. This Agreement may not be assigned or transferred by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. If there is a change in ownership resulting in a change in control for Vendor or its division that provides the Services, Vendor must notify Client no later than 10 business days after the change occurs; in such event, Client may, at its discretion, terminate the Agreement without liability and Vendor shall provide a pro-rated refund of amounts paid by Client but not yet incurred.
18.6. The parties intend that an independent contractor relationship be created by this Agreement. The conduct and control of the work will lie solely with Vendor. Vendor is not to be considered an agent or employee of Client for any purpose nor is it entitled to any of the benefits Client provides for its employees.
18.7. Facsimile or electronic transmission of this signed, original Agreement and retransmission of any signed facsimile or electronic transmission thereof shall be the same as delivery of an original.
18.8. All notices and other communications under this Agreement shall be in writing and sent by hand-delivery, reputable commercial courier (e.g., Federal Express, UPS or DHL), or electronic mail (with a confirmation copy sent by commercial carrier or certified U.S. mail) addressed as set forth below to the parties hereto, or to such other address as a party may request in writing:
Notices to Client:
Notices to Client will be addressed as specified in the applicable SOW.
Notices to Vendor:
Attn: Thomas Wong
360Factor Consulting, LLC
205 W Randolph, Suite 1200
Chicago, IL 60606
Email: thomas.wong@360factor.com
EXHIBIT A
Statement of Work #_1_
EXHIBIT B
SERVICE LEVEL AGREEMENT
This Service Level Agreement (“SLA”) are, by this reference, subject to the terms of and made a part of the Master Services Agreement (“Agreement”) between the Association (“Client”) and 360Factor Consulting, LLC ( “Vendor”). Capitalized terms used but not defined in this SLA shall have the meanings given to them in the Agreement.
Client shall be promptly notified following the discovery of any condition(s) (including, but not limited to those listed below) that present the potential for a Severity Level 1 or Severity Level 2 issue. These conditions include:
For each issue reported to Vendor by Client that is a Severity Level 1 or Severity Level 2 issue and Vendor fails to remedy such issue in the times set forth above with respect to such Severity Levels 1 or 2 as applicable, Vendor shall credit Client’s next month’s invoice with a five percent (5%) credit for each and every period for the specific severity level on all affected service(s); e.g. if there is a Severity Level 1 issue that has Client business unit unable to work, for every calendar eight hours that the Severity Level 1 problem is not fixed, Vendor will credit Client five percent (5%) of the next month’s invoice. For each issue reported to Vendor by Client that is a Severity Level 3 issue and Vendor fails to remedy the issue in the times listed above, Vendor shall credit Client’s next month’s invoice with a two percent (2%) credit on all affected services.
These Service Levels shall be measured using a monthly report, provided by Vendor, that documents time and nature of calls (or preferred method of notice) to the Client’s service team, time and date of initial response, and time of problem resolution. Resolution is defined as the case being closed by Client.
If Vendor fails to fix a Severity Level 1 or Severity Level 2 issue in the allotted timeframe four (4) or more times in a rolling three (3) month period, Client shall have the right to immediately terminate this Agreement for cause as described in the Section entitled “Term and Termination”, Subsection (b) Termination for Cause.
2. Availability, Downtime and Response Time definitions
a. “Available” shall mean the Service or system is up, running and responsive to ping requests and is providing Client the functionality and the Services described in an Exhibit B and any SOW.
b. “Availability” shall be ninety-nine and ninety hundredths percent (99.9%) Available and shall mean Scheduled Uptime minus Unplanned Downtime, divided by Scheduled Uptime multiplied by one hundred (100) (to determine a percentage). For purposes of determining whether Vendor's performance meets any Service Level, Vendor's performance will be measured based on a monthly average for the Services and Materials. The following is ‘Availability’ expressed as a mathematical formula:
i. A = Availability
ii. UD = Unplanned Downtime
iii. SU = Scheduled Uptime
iv. ED = Excusable Downtime
v. A = [(SU - (UD - ED)/SU] x 100
c. The following is an example, determined on a monthly basis, using the above formula:
i. SU = 720
ii. UD = 9.5 hours
iii. ED = 3
iv. [(720 - (9.5 - 3)/720] x 100 = 99.09%.
d. “Scheduled Uptime” shall mean the days of the week and hours per day that the Services and Materials or network is scheduled to be Available for use by Client subject to Scheduled Downtime.
e. “Scheduled Downtime” shall mean, of the Scheduled Uptime, the aggregate number of hours in any calendar month during which the system or network is scheduled to be unavailable for use by Client due to such things as preventive maintenance, system upgrades, etc., which shall occur between 10 pm and 6 am CT.
f. “Unplanned Downtime” shall mean, of the Scheduled Uptime, the aggregate number of hours in any calendar month during which the system or network is unavailable.
g. “Excusable Downtime” shall mean, of the Scheduled Uptime, the aggregate amount of time in any calendar month during which the Services and Materials or network is unavailable for use by Client due to action or inaction by Client, its vendors or agents, or due to a force majeure event, which is excusable under this Agreement. Emergency system maintenance shall be considered Excusable Downtime.
h. “Response Time” shall mean the amount of time that elapses between the time a Client authorized user of the system hits the enter button on a keyboard to the time that the system response is displayed on such authorized user’s screen. Response Time shall not exceed one (1) second. The Client has the option to request the average monthly response time from Vendor.
For each month that the system Availability is less than ninety-nine and ninety hundredths percent (99.9%) or the average Response Time is greater than one second, Vendor shall credit Client’s next month’s invoice with a five percent (5%) credit for the total monthly fees. If this system Availability and Response Time service level is not met for three (3) consecutive months, Client shall have the right to immediately terminate this Agreement for cause without an opportunity to cure.
EXHIBIT C
BACKUP AND RECOVERY PLAN
Vendor shall comply with the Backup and Recovery Plan set forth herein. In addition to any project-specific requirements as noted in the applicable SOW, and unless expressly agreed otherwise, the backup and recovery procedures for all projects shall include, at a minimum, the following components:
All system backups are completed on a daily cycle, including both full and incremental backups. Offsite storage of full backup is required. Vendor shall notify Client of the location of such offsite storage. Project-specific tape storage is detailed on a project-by-project basis. Backups samples must be tested weekly for restoration to validate data recovery procedures.
Annually, as part of the test of the Business Continuity and Disaster Recovery Plan, the Backup and Recovery processes are validated
EXHIBIT E
Transition Assistance
360Factor will provide necessary support for a smooth transition to a new system or provider when the contract concludes or if early termination occurs. The support may include training the client's team on data migration, providing any existing documentation, offering technical assistance, and outlining procedures for the seamless transition of services.
There may also be specifications on the timeframe for transition assistance, covering obligations for both parties. There might be costs associated with transition assistance, depending on the level of support required for the transition. A separate SOW will be created for that express purpose.
360Factor will assure confidentiality and data security during the transition process and will erase client’s data 60 days after the transition.
This Agreement governs all Statements of Work executed on or after July 8, 2025, unless replaced by a subsequent version.
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