Aeolus, Inc.
This Master Services Agreement ("Agreement") is entered into between Aeolus, Inc. ("Aeolus") and the entity or individual identified in an applicable Order Form ("Customer"). This Agreement governs Customer's access to and use of Aeolus's services and is effective as of the date of the applicable Order Form or as otherwise agreed in writing by the parties ("Effective Date").
Aeolus will provide to Customer the managed technology services, software resale, advisory services, and related professional services described in one or more mutually executed order forms, statements of work, or similar ordering documents ("Order Form"). Each Order Form is incorporated into and governed by this Agreement.
Services are ordered by executing an Order Form that references this Agreement. In the event of a conflict between an Order Form and this Agreement, the Order Form will control solely with respect to the specific subject matter of that Order Form. Aeolus may update its standard Order Form template from time to time, and prior executed Order Forms remain in effect unless amended in writing.
Aeolus may use subcontractors and third-party service providers to perform any portion of the Services, provided that Aeolus remains responsible to Customer for the performance of such subcontractors to the same extent as if Aeolus had performed such services directly.
Certain services may include software licenses, subscriptions, or products provided by third parties ("Third-Party Products"). Customer's use of Third-Party Products is subject to the applicable third-party terms and conditions, which Aeolus will make available to Customer. Aeolus makes no warranties with respect to Third-Party Products beyond those extended by the applicable third-party vendor.
Aeolus may procure certain Third-Party Products on Customer's behalf through a technology marketplace platform, including but not limited to AppDirect, or directly with vendors. Customer acknowledges that in such cases Aeolus acts as a reseller or authorized agent, and the terms of the applicable vendor or marketplace may apply in addition to this Agreement. Customer authorizes Aeolus to execute vendor agreements on Customer's behalf as reasonably necessary to deliver the Services.
Either party may request changes to the scope of Services by providing written notice to the other party. Changes become effective only upon mutual written agreement (including email confirmation by authorized representatives) and, if applicable, execution of an amended or new Order Form reflecting the change in scope and any associated adjustment to fees.
To the extent specific service levels, response times, or uptime commitments apply to a given Service, they will be specified in the applicable Order Form or an attached Service Level Agreement ("SLA"). Where no SLA is specified, Aeolus will use commercially reasonable efforts to deliver the Services in a professional and timely manner.
Aeolus will perform the Services in a professional, workmanlike manner consistent with industry standards, using personnel with the skills and experience reasonably necessary to deliver the Services described in each Order Form. Aeolus will assign qualified resources to each engagement and will promptly notify Customer of any material change in assigned personnel where such change may affect continuity of service.
To the extent Aeolus processes Customer personal data in connection with the Services, Aeolus will do so in accordance with its Privacy Notice (located at https://aeolus.agency/privacy/) and any applicable data processing addendum agreed to by the parties. Aeolus will implement and maintain reasonable technical and organizational security measures designed to protect Customer data against unauthorized access, disclosure, or loss.
Aeolus will comply with all applicable laws and regulations in connection with its performance of the Services, including applicable data protection and privacy laws. Aeolus will maintain any licenses, certifications, or registrations required to deliver the Services in the jurisdictions where it operates.
Customer will pay Aeolus the fees set forth in each Order Form ("Fees"). Unless otherwise specified in an Order Form, Fees are stated in U.S. dollars and are exclusive of applicable taxes, duties, and similar charges.
Aeolus will invoice Customer in accordance with the billing schedule specified in the applicable Order Form. Unless otherwise agreed, invoices are due and payable within thirty (30) days of the invoice date. Customer will pay invoices by wire transfer, ACH, check, or such other payment method as agreed in the applicable Order Form.
Any amounts not paid when due will accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by applicable law, whichever is lower, from the due date until the date of actual payment. Aeolus reserves the right to suspend performance of Services upon written notice if Customer fails to pay undisputed amounts within fifteen (15) days after such amounts are due.
Customer is responsible for all sales, use, excise, value-added, or similar taxes imposed by any government authority on transactions under this Agreement, excluding taxes based on Aeolus's net income. Where Aeolus is required by law to collect such taxes, they will be added to the applicable invoice. Customer will promptly provide Aeolus with any applicable tax exemption certificates.
If Customer disputes any portion of an invoice in good faith, Customer will (a) pay the undisputed portion by the invoice due date, (b) provide written notice of the dispute to Aeolus within fifteen (15) days of receiving the invoice, and (c) work in good faith with Aeolus to resolve the dispute promptly. Aeolus will not suspend Services for any amounts properly disputed in accordance with this Section.
Customer will provide Aeolus with reasonable cooperation, access, information, and resources necessary to enable Aeolus to perform the Services. This includes, without limitation, timely access to Customer systems, networks, personnel, and relevant documentation. Delays caused by Customer's failure to provide required cooperation may excuse Aeolus from corresponding performance obligations and may result in additional fees.
Customer is responsible for managing access to any systems, portals, or platforms provided or managed by Aeolus in connection with the Services. Customer will ensure that only authorized individuals access such systems, will promptly notify Aeolus of any unauthorized access or security incidents, and will take reasonable steps to protect credentials and access controls.
Customer will use the Services and any Third-Party Products only in accordance with applicable law, this Agreement, the applicable Order Form, and any acceptable use policies published by Aeolus or applicable third-party vendors. Customer will not use the Services to engage in any unlawful, fraudulent, or abusive activity, or in any manner that interferes with the integrity or performance of the Services or the systems of Aeolus or third parties.
As between the parties, Customer retains all right, title, and interest in and to data, content, and information provided by Customer to Aeolus in connection with the Services ("Customer Data"). Customer represents and warrants that it has all rights necessary to provide Customer Data to Aeolus and to authorize Aeolus to process Customer Data in connection with the Services. Customer is solely responsible for the accuracy, completeness, and legality of Customer Data.
This Agreement commences on the Effective Date and continues until terminated in accordance with its terms. Unless otherwise specified in an Order Form, Services commence on the start date identified in the Order Form and continue for the initial term stated therein.
Unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term, each Order Form will automatically renew for successive one (1) year periods on the same terms and conditions, unless otherwise specified in the applicable Order Form.
Either party may terminate this Agreement or any Order Form immediately upon written notice if the other party: (a) materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice describing the breach; or (b) becomes insolvent, makes a general assignment for the benefit of creditors, files or has filed against it a petition in bankruptcy, or ceases to do business in the ordinary course.
Either party may terminate this Agreement or any Order Form for convenience upon sixty (60) days' prior written notice. In the event of termination for convenience by Customer, Customer will pay all fees for Services performed through the effective date of termination, plus any non-cancellable third-party costs incurred by Aeolus on Customer's behalf through the effective date of termination.
Upon expiration or termination of this Agreement or an Order Form: (a) Customer's right to access and use the applicable Services will immediately terminate; (b) each party will promptly return or destroy the other party's Confidential Information in its possession; and (c) all payment obligations that accrued prior to termination will survive. Aeolus will make Customer Data reasonably available for export for a period of thirty (30) days following termination, after which Aeolus may delete Customer Data.
Upon request made prior to the effective date of termination, Aeolus will provide reasonable transition assistance services to Customer for a period not to exceed ninety (90) days following termination, on mutually agreed terms and at Aeolus's then-current professional services rates.
The following sections will survive expiration or termination of this Agreement: Section 3 (Payment Terms), Section 5.5 (Effect of Termination), Section 7 (Confidential Information), Section 8 (Warranties and Representations), Section 9 (Indemnification), Section 10 (Limitation of Liability), and Section 12 (Miscellaneous).
During the term of this Agreement and for a period of twelve (12) months thereafter, neither party will, directly or indirectly, solicit for employment or engagement any employee or contractor of the other party who was involved in the performance of Services under this Agreement, without the prior written consent of the other party. This Section does not prohibit either party from making general solicitations not specifically targeted at the other party's personnel.
Each party will comply with all applicable federal, state, local, and international laws and regulations in connection with its performance of obligations under this Agreement, including without limitation applicable anti-corruption laws (such as the U.S. Foreign Corrupt Practices Act), export control regulations, and data protection laws.
"Confidential Information" means any non-public information disclosed by one party ("Disclosing Party") to the other party ("Receiving Party") in connection with this Agreement that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, technical data, trade secrets, business plans, financial information, pricing, product roadmaps, customer lists, and the terms of this Agreement. Confidential Information does not include information that: (a) is or becomes publicly known through no fault of the Receiving Party; (b) was rightfully known to the Receiving Party without restriction before disclosure; (c) is rightfully obtained by the Receiving Party from a third party without restriction; or (d) is independently developed by the Receiving Party without use of the Disclosing Party's Confidential Information.
The Receiving Party will: (a) hold the Disclosing Party's Confidential Information in strict confidence using at least the same degree of care it uses to protect its own confidential information, but no less than reasonable care; (b) not disclose Confidential Information to any third party without the prior written consent of the Disclosing Party, except to employees, contractors, and advisors who have a need to know such information and are bound by confidentiality obligations no less protective than those set forth herein; and (c) use Confidential Information only in connection with the performance of its obligations or exercise of its rights under this Agreement.
If the Receiving Party is required by law, court order, or governmental authority to disclose Confidential Information, the Receiving Party will, to the extent permitted by law, provide the Disclosing Party with prompt written notice of such requirement prior to disclosure and reasonable assistance in seeking a protective order or other appropriate relief. The Receiving Party will disclose only that portion of the Confidential Information that is legally required to be disclosed.
Each party represents and warrants that: (a) it has the legal authority and capacity to enter into this Agreement; (b) this Agreement, when executed, will constitute a valid and binding obligation of such party; (c) the execution, delivery, and performance of this Agreement do not violate any law, regulation, or agreement to which such party is subject; and (d) it will perform its obligations under this Agreement in compliance with all applicable laws and regulations.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND ANY THIRD-PARTY PRODUCTS ARE PROVIDED "AS IS" AND AEOLUS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. AEOLUS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE FROM SECURITY VULNERABILITIES, OR THAT ALL DEFECTS WILL BE CORRECTED.
Each party ("Indemnifying Party") will defend, indemnify, and hold harmless the other party and its officers, directors, employees, agents, successors, and assigns ("Indemnified Party") from and against any third-party claims, demands, suits, proceedings, losses, liabilities, damages, judgments, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to: (a) the Indemnifying Party's material breach of this Agreement; (b) the Indemnifying Party's negligence or willful misconduct; (c) in the case of Aeolus, any claim that the Services, as delivered, infringe any third-party intellectual property rights (excluding claims arising from Customer's customizations, modifications, or combination of the Services with other products or services); or (d) in the case of Customer, any claim arising from Customer Data or Customer's use of the Services in violation of this Agreement or applicable law. The Indemnified Party will: (i) promptly notify the Indemnifying Party in writing of any claim; (ii) grant the Indemnifying Party sole control of the defense and settlement of the claim; and (iii) provide reasonable cooperation and assistance at the Indemnifying Party's expense.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF DATA, OR LOSS OF GOODWILL, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION OR THE THEORY OF LIABILITY.
EXCEPT FOR (A) CUSTOMER'S PAYMENT OBLIGATIONS, (B) EITHER PARTY'S OBLIGATIONS UNDER SECTION 7 (CONFIDENTIAL INFORMATION), (C) EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, AND (D) DAMAGES ARISING FROM A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO AEOLUS IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Neither party will be liable to the other for any delay or failure to perform its obligations under this Agreement (other than payment obligations) to the extent such delay or failure is caused by circumstances beyond such party's reasonable control, including without limitation acts of God, natural disasters, epidemics or pandemics, war, terrorism, civil unrest, governmental actions or regulations, labor disputes, power outages, or internet service disruptions ("Force Majeure Event"). The party affected by a Force Majeure Event will promptly notify the other party in writing and will use commercially reasonable efforts to mitigate the impact of such event. If a Force Majeure Event continues for more than sixty (60) consecutive days, either party may terminate the affected Order Form upon written notice without liability for such termination.
All notices, requests, and other communications under this Agreement must be in writing and will be deemed duly given when: (a) delivered personally; (b) sent by nationally recognized overnight courier; (c) sent by certified or registered mail, return receipt requested; or (d) sent by email with confirmation of receipt. Notices to Aeolus should be addressed to: Aeolus, Inc., Attn: Legal, and emailed to [email protected]. Notices to Customer should be directed to the address and contact identified in the applicable Order Form.
This Agreement, together with all Order Forms and any exhibits or addenda incorporated herein, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, negotiations, and understandings, whether written or oral, relating to such subject matter. No modification or amendment of this Agreement will be effective unless made in writing and signed by authorized representatives of both parties.
If any provision of this Agreement is held to be invalid, illegal, or unenforceable, such provision will be modified to the minimum extent necessary to make it enforceable, or if it cannot be so modified, will be severed from this Agreement, and the remaining provisions of this Agreement will continue in full force and effect. The parties will negotiate in good faith to replace any severed provision with a valid provision that as closely as possible achieves the original intent and economic effect of the severed provision.
No failure or delay by either party in exercising any right or remedy under this Agreement will operate as a waiver of such right or remedy. No single or partial exercise of any right or remedy will preclude any other or further exercise of such right or remedy or the exercise of any other right or remedy. Any waiver must be made in writing and signed by the waiving party to be effective.
Neither party may assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, not to be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement without consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that the assignee assumes all obligations of the assignor hereunder. Any purported assignment in violation of this Section will be null and void.
This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law principles. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach thereof, that cannot be resolved through good-faith negotiation will be submitted to binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitration will be conducted in English by a single arbitrator and will take place in the State of Delaware, unless the parties mutually agree otherwise. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction.
The parties are independent contractors. Nothing in this Agreement will be construed to create a partnership, joint venture, agency, employment, or fiduciary relationship between the parties. Neither party will have any authority to bind the other party or to incur any obligation on behalf of the other party without such party's prior written consent.
Section headings in this Agreement are for convenience only and have no legal or contractual effect. Unless the context otherwise requires, "including" means "including without limitation," and references to a statute or regulation include all amendments thereto and successor provisions. This Agreement will be construed without regard to any presumption or rule requiring construction against the party causing this Agreement to be drafted.
Customer's use of the Services is also subject to Aeolus's Privacy Notice, which is available at https://aeolus.agency/privacy/ and is incorporated into this Agreement by reference. Aeolus may update its Privacy Notice from time to time in accordance with applicable law, and will notify Customer of material changes as described therein.