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MSA

SIMPLE HELIX, LLC

INFORMATION TECHNOLOGY MASTER SERVICES AGREEMENT 

This Information Technology Master Services Agreement (“Agreement”) is by and between SIMPLE HELIX, LLC, an Alabama limited liability company, whose principal place of business is 165 West Park Loop NW, Huntsville, Alabama 35806 (“Simple Helix”) and the Customer (as defined within the Statement of Work (SOW)). This Agreement precedes any current or future Statement of Work (“SOW”) as executed by each party, any future change order (“Change Order”), and all such documents are incorporated by this reference.  Additional terms and conditions relevant to specific product and service offerings can be found online at https://www.simplehelix.com/terms-and-conditions/.  Such terms and conditions are made part of this Agreement to the extent such products or services are listed on any SOW.

The parties have agreed that Simple Helix will provide such information technology services as the parties may agree, now and pursuant to future SOWs (the “Services”). Therefore, in consideration for the commitments set forth below, the adequacy of which consideration the parties hereby acknowledge, the parties agree as follows.

1. SERVICES

1.1.  Provision of Services. Simple Helix shall provide the Services set forth in each SOW, and Customer shall provide any assistance and cooperation necessary or convenient to facilitate the Services called for in each SOW. Simple Helix may employ subcontractors in the provision of Services, but Simple Helix will be responsible and liable for such subcontractor’s acts and omissions related to this Agreement.

1.2.  Deliverables

(a)  Acceptance & Rejection. Software or other deliverables created pursuant to the Services (“Deliverables”) will be considered accepted (“Acceptance”) (i) when Customer provides Simple Helix written notice of acceptance or (ii) five (5) days after delivery if Customer has not first provided Simple Helix with written notice of objection. Customer may object to a Deliverable only if it materially deviates from its specifications and requirements listed in the applicable SOW and only via written notice setting forth the nature of such deviation. In the event of such objection, Simple Helix shall work with Customer on a plan of action to correct or replace the defective Deliverable within fifteen (15) days. After redelivery pursuant to the previous sentence, the parties shall again follow the acceptance procedures set forth in this Subsection 1.2(a). This Subsection 1.2(a), in conjunction with Customer’s right to terminate for material breach where applicable, sets forth Customer’s only remedy and Simple Helix’s only liability for failure of Deliverables.

(b)  License to Deliverables. Effective upon Acceptance of each Deliverable, Simple Helix grants Customer a nonexclusive, fully paid, royalty-free license to reproduce, modify, and use such Deliverable as necessary for Customer’s internal business purposes, provided Customer complies with the restrictions set forth below in Subsection 1.2(c).

(c)  Restrictions on Deliverables Rights. Customer shall not distribute, publicly display, publicly perform, or sublicense any Deliverables (including without limitation any derivative work thereof).  Simple Helix retains ownership of all Deliverables, and Customer receives no right, title, or interest in or to Deliverables except as specifically set forth in Subsection 1.2(b) above.

2. FEES & REIMBURSEMENT
2.1 Fees. Customer shall pay Simple Helix the fees as set forth in each SOW. Amounts listed in SOW’s do not include applicable taxes or other government-imposed fees that may be applicable to the Services provided; all such additional taxes and fees, if any, will be invoiced to and paid by Customer.

2.2. Reimbursement. Simple Helix will not be required to refund fees under any circumstances.

2.3 Failed Payments. In the event any fees are not paid when due, such late fees will bear interest at the lesser of eighteen percent (18%) per annum or the maximum rate allowed by applicable law. If the Customer remains delinquent after three (3) calendar months, Simple Helix reserves the right to disable/shutdown services immediately until payment is made current.

2.4 Pricing Increases. Simple Helix reserves the right to increase the rate for product(s)/subscription(s)/service(s) in the event that Simple Helix’s underlying costs in procuring the mentioned product(s)/subscription(s)/service(s) increase. Pricing increases will be reflected directly onto the Customer’s monthly invoice.

2.5 Early Termination Fee. In accordance with the terms of Section 8.3, the Early Termination Fee will be an amount equal to one hundred percent (100%) of the remaining monthly recurring charges calculated by the sum of the then-current monthly license count multiplied by any remaining months in the term, plus any remaining annually recurring charges, 100% of any remaining balance on leased hardware, any unpaid non-recurring charges, and any unpaid previous balance. The Early Termination Fee will be due and payable to Simple Helix immediately upon termination by the Customer in accordance with Section 8.3.

2.6 Billing Point of Contact.
Payments can be made to Simple Helix using the following information:

Simple Helix, LLC
Attention Accounting Department
165 West Park Loop, NW
Huntsville, AL 35806
(256) 704-1041 Option #4
accounting@simplehelix.com

3. CONFIDENTIAL INFORMATION. “Confidential Information” refers to the following items one party to this Agreement (“Discloser”) discloses to the other party (“Recipient”): (a) any document Discloser marks “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within five (5) business days; (c) any SOW’s executed by the parties and Simple Helix’s pricing information; and (d) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser. Recipient is on notice that the Confidential Information may include Discloser’s valuable trade secrets.

3.1.  Nondisclosure. Recipient shall not use Confidential Information for any purpose other than to fulfill the obligations of this Agreement (the “Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless access is necessary or appropriate to facilitate the Purpose and any such contractor executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Article 3; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.

3.2.  Injunction. Recipient agrees that breach of this Article 3 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

3.3.  Termination & Return. With respect to each item of Confidential Information, the obligations of Section 3.1 above will terminate two (2) years after the termination or expiration of this Agreement; provided that such obligations related to Confidential Information constituting Discloser’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.  Recipient may retain an electronic copy of Confidential Information received pursuant to Recipient’s written document retention policies.

3.4.  Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.

3.5.  Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:

(a)   Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (i) is made- (A) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

(b)  Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (i) files any document containing the trade secret under seal; and (ii) does not disclose the trade secret, except pursuant to court order.

4. REPRESENTATIONS & WARRANTIES.

4.1.  From Simple Helix. Simple Helix represents and warrants: (a) that all Services will be performed in a professional and workmanlike manner; and (b) that any Deliverables will conform to their specifications set forth in the applicable SOW for a period of thirty (30) days following Acceptance (as defined in Subsection 1.2(a) above) or such longer term as provided in the SOW. In the event of a breach of either warranty in this Section 4.1, Simple Helix, at its own expense, shall promptly re-perform the Services or repair and redeliver the Deliverable in question. The preceding sentence, in conjunction with Customer’s right to terminate this Agreement for breach where applicable, states Customer’s sole remedy and Simple Helix’s entire liability for breach of the warranty in this Section 4.1.

4.2.  From Each Party. Each party represents and warrants that it has the full right and authority to enter, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.

4.3.  Warranty Disclaimers. Except as set forth above in this Article 4, SIMPLE HELIX PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) SIMPLE HELIX DOES NOT REPRESENT OR WARRANT THAT THE DELIVERABLES WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (b) SIMPLE HELIX DOES NOT REPRESENT OR WARRANT THAT THE DELIVERABLES WILL BE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.

5. INDEMNIFICATION

5.1.  From Simple Helix. Simple Helix shall defend and indemnify Customer and Customer’s Associates (as defined below in Section 5.3) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging: (a) direct infringement of any patent, copyright, trade secret, or other intellectual property right by any Deliverable; or (b) injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Simple Helix or of any of its agents, subcontractors, or employees. Simple Helix’s obligations set forth in Subsection 5.1(a) above do not apply to the extent that an Indemnified Claim arises out of: (i) Customer’s breach of this Agreement; (ii) revisions to the Deliverable made without Simple Helix’s written consent; (iii) Customer’s failure to incorporate updates or upgrades that would have avoided the alleged infringement, provided Simple Helix offered such updates or upgrades without charges not otherwise required pursuant to this Agreement; (iv) Simple Helix’s design or modification of the Deliverable in compliance with specifications provided by Customer; or (v) use of the Deliverable in combination with hardware or software not provided by Simple Helix, unless (A) the SOW, or other documentation provided by Simple Helix or agreed between the parties, (collectively, “Documentation”) refers to a combination with such hardware or software, without directing the user not to perform such a combination, or (B) such combination achieves functionality described in the Documentation (and the Documentation does not direct the user not to perform such combination). In the event of an Indemnified Claim pursuant to Subsection 5.1(a) above, Simple Helix may request that Customer cease all use of the Deliverable at issue, and if Customer does not comply, Simple Helix will have no obligations related to the Indemnified Claim corresponding to Customer’s use of the Deliverable starting thirty (30) days after Simple Helix’s request. Simple Helix’s obligations set forth in Subsection 5.1(b) above do not apply to the extent that an Indemnified Claim arises out of Customer’s breach of this Agreement.

5.2.  From Customer. Customer shall indemnify and defend Simple Helix and Simple Helix’s Associates (as defined below in Section 5.3) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to: (a) Customer’s alleged or actual misuse of, or failure to use a Deliverable; or (b) injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Customer or of any of its agents, subcontractors, or employees. Indemnified Claims listed in Subsection 5.2(a) above include, without limitation: (i) claims by or Customer’s employees, contractors, or other users (collectively, “Users”); and (ii) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information. Indemnified Claims listed above in Section 5.2(a) do not include any claim that would constitute an Indemnified Claim pursuant to Section 5.1(a) above.

5.3.  Litigation & Additional Terms. The obligations of the indemnifying party (“Indemnitor”) pursuant to Section 5.1 or 5.2 above: (a) include retention and payment of attorneys and payment of court costs, as well as settlement at Indemnitor’s expense and payment of judgments; and (b) will be excused to the extent that the other contracting party’s (“Indemnified Party’s”) or any of such Indemnified Party’s Associates’ failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. A party’s “Associates” means its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.

6. LIMITATION OF LIABILITY.

6.1.  Dollar Cap. SIMPLE HELIX’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED an amount equal to the actual fees paid by customer to SIMPLE HELIX for the twelve (12) months preceeding the liability event.

6.2.  Exclusion of Consequential Damages. IN NO EVENT WILL SIMPLE HELIX BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

6.3.  PERIOD OF LIMITATIONS.  CUSTOMER MUST FILE ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT NO LATER THAN TWO (2) YEARS AFTER THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.  CUSTOMER WAIVES THE RIGHT TO FILE AN ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LONGER STATUTE OF LIMITATIONS.

6.4.  Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 6 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF SIMPLE HELIX IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 6, Simple Helix’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Simple Helix’s liability limits and other rights set forth in this Article 6 apply likewise to Simple Helix’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

7. COMPLIANCE

7.1. Disclaimer. Certain Customers may be required to meet applicable compliance standards based on the Customer’s industry or business. Examples but not limited to would be SOC2 compliance in medical businesses or NIST 800-171 in the Defense Industrial Base.  Unless otherwise expressly stated in the SOW, Simple Helix disclaims any responsibility for the Customer meeting the compliance standard and/or be accountable for the Customer failing a compliance audit.

7.2. Scoping. If the Customer is striving to meet a compliance framework/standard, the Customer can make Simple Helix responsible for certain task(s) required within the compliance program. Simple Helix would provide a Shared Responsibility Matrix (SRM) that would map the framework/standard controls to whom is responsible for the control.

7.3. Inheritance. Simple Helix reserves the right to inherit security and/or compliance requirements, settings, configurations, and other compliance artifacts from Simple Helix vendors. For example, Simple Helix inherits Microsoft’s FedRAMP certification on Microsoft 365 GCC and Microsoft 365 GCC-HIGH service offerings. These inheritances are documented in the Shared Responsibility Matrix (SRM).

8. TERM & TERMINATION.

8.1.  Term. The term of this Agreement will commence on the Effective Date and continue for the period set forth in any outstanding SOW.

8.2.  Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in forty-five (45) days unless the other party first cures such breach.

8.3.  Termination for Convenience. In the event Customer wishes to terminate any individual Statement of Work (SOW) or all Statements of Work under this Agreement, for any reason other than those set forth in Section 8.2 above, the Customer must pay the Early Termination fee as defined in Section 2.5.

8.4.  Survival. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 1.2(c) (Restrictions on Deliverables Rights), 3 (Confidential Information), 4.3 (Warranty Disclaimers), 5 (Indemnification), 6 (Limitation of Liability), 7 (Compliance), and 10.2 (Feedback); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

9. SECURITY THREAT. In the event Simple Helix determines in its reasonable discretion that through Customer’s use of the Services there exists a security threat to Simple Helix’s internal systems or to Simple Helix’s other Customers, Simple Helix may take any and all actions necessary to stop and remove such security threat.  Such action by Simple Helix may include suspension of Customer’s Services.  Customer agrees to use its commercially reasonable best efforts to assist Simple Helix in remedying the security threat.  Any action taken by Simple Helix, including suspension of Customer’s Services, will not be deemed a breach of any portion of the Agreement, including any applicable Service Level Agreement (SLA).

10. MISCELLANEOUS

10.1.  Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Simple Helix employee or contractor is or will be considered an employee of Customer.

10.2.  Feedback. Simple Helix has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer or any User provides to Simple Helix, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Simple Helix’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of Article 3 above, Feedback will not be considered Confidential Information, provided information Customer transmits with Feedback or related to Feedback may be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Simple Helix’s products or services.)

10.3.  Notices. Notices pursuant to this Agreement shall be sent to the addresses below, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (i) actual receipt or (ii) delivery in person or by certified mail return receipt requested.

Simple Helix, LLC
Attn: Scott McDaniel
165 West Park Loop NW
Huntsville, Alabama 35806

With copy to:    Leo Law Firm, LLC

Leo Law Firm, LLC
Attn: Trevor Moore
200 Randolph Avenue
Huntsville, Alabama 35801
  

10.4.  Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.

10.5.  Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Simple Helix’s express written consent. Except to the extent forbidden in this Section 10.5, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

10.6.  Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

10.7.  No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

10.8.  Choice of Law & Jurisdiction. This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of Alabama, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts having original jurisdiction over Madison County, Alabama. This Section 10.8 governs all claims arising out of or related to this Agreement, including without limitation tort claims.

10.9.  Attorneys’ Fees.  In the event that either party is required to retain the services of an attorney to enforce this Agreement or to defend against any cause of action, claim, or counterclaim brought by the other party pursuant to this Agreement, then the prevailing party will be entitled to recover the attorneys’ fees and costs which it has incurred, in addition to other remedies to which it is entitled under applicable law, unless the adjudicator specifically finds that neither party is the prevailing party.

10.10. Conflicts. In the event of any conflict among the attachments to this Agreement and this main body, the following order of precedence will govern, with lower numbers governing over higher ones: (1) this main body of this Agreement; (2) any Addendums to this Agreement; and (3) any SOW, with more recent SOW’s taking precedence over later ones.

10.11. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.

10.12. Mutual Non-Solicitation. Neither Party shall solicit for employment or hire any current or former employee of the other Party without such Party’s prior written consent for a period of twelve (12) months after the end of the Term or, with respect to any employee whose employment is terminated prior to the end of the Term, for a period of twelve (12) months after the end of such employee’s employment with the other Party. Nothing contained herein shall prohibit the hiring of any person who responds to a job posting advertised in publications of general circulation.

10.13. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

10.14. Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.

10.15.  Amendment. This Agreement may not be amended except through a written agreement by authorized representatives of each party.