Managed Services Provider (MSP) Agreement This MANAGED SERVICES PROVIDER (MSP) AGREEMENT (this “Agreement”) by and between Design Shore, Inc. (“DESIGN SHORE”), and the (party named) in the MSP Quotation as managed service provider (“MSP”), is entered into on the Effective (Date set forth in the MSP Quotation). Subject to the terms and conditions set forth in this Agreement and in consideration of the mutual premises and undertaking herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, DESIGN SHORE hereby appoints MSP and MSP accepts appointment as an authorized non-exclusive MSP of the “Service,” in the “Territory,” identified in the MSP Quotation.
01. Scope of Agreement Design Shore provides the services set forth on the Quotation.
The Website is owned and operated by DESIGN SHORE Technologies Aus Limited Trading under Design Shore online.
02. Term and Termination
Term. Commencing on the Effective Date, this Agreement shall have an initial term as set forth in the Quotation (“Initial Term”), unless terminated as provided herein. Thereafter, this Agreement shall automatically extend for additional terms of twelve (12) months (each a “Renewal Term”. The “Initial Term” and any “Renewal Term” (if any) shall be referred to herein as the “Term”) unless terminated by either party hereto upon written notice not later than thirty (30) days prior to the expiration of the Initial Term or any Renewal Term, as the case may be. Any expiration or termination of this Agreement shall not modify any rights or obligations of a party hereto which arose prior to such expiration or termination.
Termination for Convenience. Design Shore may terminate this Agreement without cause upon thirty (30) days prior written notice to Client.
Termination for Cause. Either party may terminate this Agreement in the event of (a) a material breach by the other party of any term and condition of this Agreement upon thirty (30) days prior written notice and failure to cure such breach within such 30-day notice period, or (b) upon thirty (30) days prior written notice if the other party shall become insolvent, commits an act of bankruptcy, is subject to a proceeding in bankruptcy, receivership, liquidation or insolvency or if there is a change in the controlling ownership of the business.
Design Shore’s Rights in the Event of MSP Breach. In event of an breach of this Agreement, Design Shore may:
- Suspend delivery to clients until the default is cured.
- Proceed to enforce performance and/or recover damages
- Manage the renewal and any other negotiations directly with the End Users and/or
- Terminate this Agreement.
If a party continues to perform after the other party’s default, such action shall not constitute a waiver of any rights or remedies. Pricing for the Services shall be as set forth in Design Shore’s current price list (the “Price List“) set forth on the Quotation subject to the terms of this Agreement. Design Shore reserves the right to modify the Territory and Price List, applicable Services, support services and the like for any new orders for Services upon thirty (30) days prior written notice to the end client. Design Shore acknowledges that its appointment under this Agreement is non-exclusive, that it obtains no exclusive rights in any geographic area, commercial and/or governmental market segment and/or country for the Services.
03. Design Shore’s Representations and Obligations
Design Shore Obligations
- We shall maintain at all times the facilities, resources, inventory, personnel and experience and shall use our best efforts to market, support, and/or resell the Services in the Territory, and to perform its obligations under this Agreement.
- Design Shores’ appointment as a MSP and the licenses granted to us hereunder are conditioned upon:
- Design shore entering into an agreement with each Customer and each Partner with terms consistent with this Agreement and
- Design shore entering into a binding agreement with each Customer and causing each Partner to enter into a binding agreement with their end user customers (such Partner end users together with Customers, the “End Users”) with terms consistent with this Agreement and containing terms and conditions substantially in conformity with those set forth in the End User License Agreement (EULA) found at https://www.Design Shore.com/EULA. Design Shore will not make, and shall ensure that its Partners shall not make, any claim, representation or warranty regarding the Services or any software or other technology incorporated therein, other than those claims, representations and warranties set forth in Design Shore’s printed documentation and marketing materials provided to end client by Design Shore.
- End client will:
- conduct business in a manner that reflects favourably at all times on the Services and the good name, good will and reputation of Design Shore
- avoid deceptive, misleading or unethical practices that are or might be detrimental to Design Shore or the Services
- make no false or misleading representations with regard to Design Shore or the Services
- not publish or employ, ‘or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to Design Shore or the Services
- make no representations, warranties or guarantees to customers or to the trade with respect to the specifications, features or capabilities of the Services that are inconsistent with the literature distributed by Design Shore and
- not enter into any contract or engage in any practice detrimental to the interests of Design Shore or the Services.
Customer Information. End client shall provide Design Shore, upon Design Shore’s request, with information regarding the number of Customers, Partners and End Users of the Services on any given date during the Term of this Agreement or over any given period during the Term of this Agreement and other non-personally identifiable information reasonably requested by Design Shore during the Term of this Agreement to monitor usage of the Services and the applicable fees for such services
3.3 Compatibility and Services Defects. End client shall be solely responsible for the compatibility of the Services with the products and services offered by vendors and its Partners and shall promptly report to Design Shore any defects with respect to the Services or any conflicts between the Services and any vendors or Partner products or services.
3.4 Support of Services. Design Shore shall provide all Tier 1 and Tier 2 (as defined below) support for the Services and shall maintain a Customer Support Center available to End Users and Partner from 8:00 a.m. to 6:00 p.m. Local Time to resolve Customer service, billing and/or other inquiries or questions. “Tier 1” support – This is first contact support and it is provided by “level one” technicians. It is where the majority of support contacts with customers occur. This support can be provided through multiple channels such as telephone, email, web, and chat. If a tier one support case or incident cannot be resolved in a reasonable amount of time then the case is escalated to Tier 2 support. The majority of customer cases are resolved at the tier one level. “Tier 2” support – A case is escalated to Tier 2 when either Tier 1 resources cannot resolve the issue or the case is going to take an extended period of time to research. Tier 2 technicians have a higher level of technical expertise and typically have more experience working with the product suite. “Tier 3” support – This is the highest level of technical support. These technicians take the most difficult of cases and will interface with Design Shore’s development team if they need to be involved in resolving a case.
3.5 Design shore agrees not to introduce or attempt to sell competitive products or services to an End User or Customer during the Term of the Agreement, including the period during which a subscription to a Service is subject to renewal. Violation of this provision will result in Design Shore managing the renewal and any other negotiations directly with the End User, and will result in Design Shore being permitted to terminate this Agreement
04. Design Shore’s Obligations
4.1 Design Shore agrees that the servers, hardware and third party software used to host and provide the Services shall be maintained by Design Shore at its sole cost and expense. Design Shore shall have no obligation to purchase or acquire dedicated servers or hardware for End Users in connection with any the Services contemplated hereby.
4.2 Design Shore shall provide end client, at no charge, in electronic format, with a reasonable supply of Services’ literature, marketing information, user documentation and manuals in the English language, provided end client shall ensure that all applicable Design Shore notices are included and shall return all documentation upon the expiration or termination of this Agreement.
Fees During the Term of this Agreement, All fees and prices to end client are exclusive of all taxes and other charges. DESIGN SHORE MAY MODIFY THE PRICE LIST FOR ANY SERVICES UNDER THIS AGREEMENT AT ANY TIME UPON THIRTY (30) DAYS PRIOR WRITTEN NOTICE TO the End cleint. All orders accepted by Design Shore before the effective date of any fee or price modification shall be at the fee in effect prior to such modification. Thereafter, all orders accepted by Design Shore shall be at such modified fee.
06. Payment Terms
6.1 The terms of payment by MSP are due upon receipt of the invoice, notwithstanding any payment or nonpayment by Customer or Partners.
6.2 In the event that end client fails to make any payment when due, Design Shore may, in addition to all other remedies available to it, withhold further Services. A late payment charge of three percent (3%) per month, or the maximum allowed by law, shall be assessed on all overdue amounts. End client shall reimburse Design Shore’s costs of collection including, but not limited to reasonable attorneys’ fees. Except for taxes based on Design Shore’s net income, MSP shall pay any applicable sales, use, value added or other similar taxes, duties or assessments, or amounts levied in lieu of such taxes, now or later imposed. Any claim for exemption by end client shall be effective only after Design Shore’s receipt of all proper exemption documentation and requirements
Orders All orders of Services shall be made pursuant to purchase orders or written requests (as determined by Design Shore) issued by end client to Design Shore in the form acceptable to Design Shore. Design Shore shall use reasonable effort to meet proposed implementation dates for the Services and shall not be liable for delivery delays. No purchase order, acknowledgment form, or other document or communication from end client shall amend the terms and conditions of this Agreement.
Design Shore won’t give away your name, address, phone number, email address or any other information to anyone.
08. Licenses, Ownership and Restrictions
8.1 1 Ownership; Restrictions on Use. End clients acknowledges that all right, title and interest in the Services, including any and all software and other technology used to provide the Services and any intellectual property rights therein or thereto, including patents, copyrights, trademarks, and trade secrets, shall remain the sole and exclusive property of Design Shore and its licensors. No title to or ownership of the intellectual property contained in the Services or any part of the Services or Design Shore’s confidential information is transferred to the end cleint. End client acknowledges that the Services as well as all enhancements, updates, modifications, local versions or any derivatives of the Services, and all intellectual property and proprietary rights therein shall remain Design Shore’s property. Design shore shall not delete or alter any Design Shore trade names, trademarks or other insignia which are affixed to the Services or related documentation and may only use such marks in conjunction with its marketing and/or resale of the Services in accordance with Design Shore’s then current guidelines on usage. End client shall refrain from any other direct or indirect use or registration of such marks or similar marks. Upon expiration or termination of this Agreement, End client shall take all actions necessary to transfer and assign to Design Shore, any right, title or interest in and to any of the marks and shall immediately cease to use any mark. End client shall promptly notify Design Shore of any claims with respect to the license or use of the Services or to any alleged intellectual property infringement. Except with the express written consent from Design Shore, End client agrees that they shall not permit any third party, to
- Modify, adapt, alter, translate, or create derivative works from the Services or the documentation related thereto.
- Merge the Services with other software.
- Allow anyone to resell, export, sell, provide for service bureau use, lease, rent, loan, or otherwise transfer the Services or the documentation to any third party.
- Reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Services.
- Remove or alter any copyright notices or other notices included in the Services.
- Otherwise use or copy the Services except as expressly permitted. Without the limiting the foregoing, the restrictions on use of the Services set forth in this Section shall apply to any Services supplied to Design Shore by its suppliers.
Your business is no one else's. Your privacy is important to you and to us. So we'll protect the information you share with us. DESIGN SHORE TECHNOLOGIES PVT. Ltd. follows different principles in accordance with worldwide practices for customer privacy and data protection.
Design Shore won’t give away your name, address, phone number, email address or any other information to anyone.
Records and Audit End client shall maintain adequate records with respect to the Services. Design Shore reserves the right to audit by an independent auditor, at end client’s expense, all applicable books and records relating to the Services. Upon prior written notice by Design Shore and no more than once a calendar year, end client shall provide access to such records during normal business hours. End client shall bear the cost of the audit. In addition, End client shall pay any underpaid amount within thirty (30) days of the audit. All records shall be subject to the confidentiality provisions of this Agreement.
No Warranty End client ACKNOWLEDGES AND AGREES THAT DESIGN SHORE DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. DESIGN SHORE DOES NOT WARRANT THAT THE SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE.
Confidentiality For purposes of this Agreement, “Confidential Information” shall mean any information if :
- It is delivered in tangible form marked “confidential”
- It is delivered orally and described as confidential at the time of delivery or disclosure, or
- the receiving party might reasonably be expected to judge it as confidential. Neither party shall directly or indirectly communicate to any person or other entity any Confidential Information unless
- Such information is already known or independently developed (without use of the Confidential Information) by the receiving party, as evidenced by its business records at the time it was provided
- Such information is already in the public domain through no fault of a party to this Agreement
- The receiving party is required to disclose such information pursuant to law or court order, but only after notifying the other party and allowing the other party an opportunity to obtain a protective or other order (unless prohibited by law or court order); or
- such information lawfully comes into the receiving party’s possession from a third party without any obligation of confidentiality to the disclosing party. Both parties agree to use such Confidential Information only in its performance under this Agreement and shall treat and protect such information in the same manner as it treats its own confidential information, but with not less than reasonable care. The obligations of this Section shall continue for a period of two (2) years after termination or expiration of this Agreement.
. Any Confidential Information in tangible form shall be returned by the receiving party or the receiving party shall destroy such Confidential Information and certify to the disclosing party such destruction has occurred upon written notice or termination or expiration of this Agreement.
Design Shore Indemnity Design Shore will defend at its own expense any action against MSP brought by a third party to the extent that the action is based upon a claim that the Services infringes any U.S. or EU patents, trademarks or copyrights of a third party, and Design Shore will pay those costs and damages finally awarded against MSP in any such action that are specifically attributable to such claim or those costs and damages agreed to in a settlement of such action. The foregoing obligations are conditioned on MSP notifying Design Shore promptly (but no later than 7 days) in writing of such action; giving Design Shore sole control of the defense thereof and any related settlement negotiations; and cooperating, at Design Shore’s request and expense in such defense. If the Services becomes, or in Design Shore’s opinion is likely to become, the subject of an infringement claim, Design Shore may, at its sole option and expense, either :
- Procure for MSP the right to continue using the Services, or
- Modify the Services so that it becomes non-infringing. If none of the above options are reasonably available, MSP may terminate this Agreement and MSP shall receive reimbursement of all amounts paid to Design Shore for the previous six (6) months period. Notwithstanding the foregoing, Design Shore shall have no liability under this Section 13 if :
The alleged infringement arises directly from :
- The integration of the Services with other equipment or software that were not provided by Design Shore, or
- Modifications made to the Services without the Design Shore’s consent, or
- Use of the Services other than as directed by Design Shore’s Documentation, if such action would have been avoided but for such use, modification or combination; or
MSP is in breach of the terms and conditions of this Agreement.
Design Shore’s Indemnity shall defend, indemnify and hold Design Shore harmless from any claim, suit, damages and expenses (including, but not limited to, attorneys’ fees) arising out of :
- The license, servicing and related activities pursuant to this Agreement with respect to the Services by us and/or Partners.
- The failure of us and/or Partners to comply with all applicable laws, rules, and/or regulations regarding the Services
- The failure of Client and/or Partners to comply with the terms and conditions of this Agreement
- Any negligent act or omission of Client and/or Partner; or
- Any wilful misconduct of us and/or Partner. Design Shore may participate in the defence or settlement of any such claim, suit or proceeding with counsel at its expense.
Independent Contractor shall conduct its business under this Agreement as an independent contractor and this Agreement creates no relationship of principal and agent, partner, joint venture, employer/employee or any similar relationship. We acknowledge no client/partner has paid any fee or sum for the rights to resell the Services and that it does not have any authority to act on Design Shore’s behalf. Client will not represent itself to be an agent for Design Shore and will not attempt to create any obligation or make any representation on behalf of or in the name of Design Shore.
Limitation of Liability EXCEPT FOR EACH PARTY’S INDEMNITY OBLIGATIONS UNDER SECTIONS 13 AND 14, EITHER PARTY’S BREACH OF SECTION 12, OR FOR CLIENTS BREACH OF SECTION 9, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR, IN THE CASE OF DESIGN SHORE, FOR DIRECT DAMAGES IN EXCESS OF THE AMOUNTS PAID BY CLIENT FOR THE SERVICES THAT GAVE RISE TO THE LIABILITY, WHETHER FORESEEABLE OR UNFORESEEABLE, OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION LOSS OF INCOME, DATA, GOODWILL, USE OR INFORMATION, DOWNTIME OR COSTS OF SUBSTITUTE SERVICES OR EQUIPMENT), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF DESIGN SHORE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Each party represents it has the right and authority to enter into this Agreement and it will comply with all applicable laws or regulations of the Territory.
16.2 Entire Agreement, Amendment and Waiver
This Agreement and the exhibits and addendums hereto supersedes all prior and contemporaneous agreements, representations and understandings and contains the entire agreement between the parties with regard to the subject matter contained herein. Client acknowledges that it has not relied upon any promise, representation or statement of Design Shore except as expressly set forth herein. No amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of each party. No failure or delay of Design Shore in exercising any right or remedy under this Agreement shall operate as a waiver of such right or remedy.
This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. MSP shall not have the right to assign or otherwise transfer its rights or delegate its duties under this Agreement without the express written consent of Design Shore; any such assignment shall be null and void. Design Shore may assign this Agreement in the event of a merger, consolidation or the sale of all or substantially all of its assets or stock.
Any notice or other communication sent by facsimile will be deemed to have been received on the day it is sent. Any notice or other communication sent by registered or certified mail or courier will be deemed to have been received five (5) business days after its date of posting. All notices shall be sent to the applicable address on the client Quotation, as may be amended. Notices may also be sent by email, receipt confirmed.
16.5 Governing Law
This Agreement shall be governed, construed and interpreted in accordance with the laws of the local territory, without regard to its choice of law provisions or policies. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement. The prohibition on or unenforceability of any provision in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction.
This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. Headings in this Agreement are included for reference only and shall not constitute a part of this Agreement for any other purpose. The English language version of this Agreement shall be definitive and shall control over any translation.
16.8 Force Majeure
Both parties shall not be liable to the other for any loss, injury, delay (except for any payment obligations) for expenses or damages arising out of any cause or event not within its reasonable control including, but not limited to: riots, wars or hostilities between any nations; Acts of terrorism; Acts of God, fires, storms, floods or earthquakes; strikes, labour disputes, vendor delays, or shortages or curtailments of raw materials; labour, power or other utility services; governmental restrictions or trade disputes; manufacturing delays; or other contingencies.
Nothing in this Agreement shall restrict Design Shore’s ability to market, promote, solicit, service, sell, or license its Services or products to any End Users, partners, resellers or anyone else or from doing business with any End Users, partners, resellers, or anyone else.