IMPORTANT - READ CAREFULLY
Please read the following legally binding Master Client Agreement (“Agreement”) between AlasConnect, LLC d.b.a Ampersand (“Ampersand”), an Alaskan Limited Liability Corporation with its principle offices at 2525 Gambell Street, Suite 415, Anchorage, Alaska and the person or entity that has been granted rights under this Agreement (“Client”) carefully.
This Agreement will apply to any and all quotes, order forms, proposals or similar document provided by Ampersand to Client (“Sales Contract”) for the use of delivery of any hardware, software, services or other offering by Ampersand to Client (each, an “Offering”).
Ampersand agrees to perform services as requested within a fully executed Sales Contract issued pursuant to this Agreement.
Payment Terms & Late Fees
Payments are due upon receipt of invoice. Any unpaid balances after thirty (30) days from the invoice date shall be considered Past Due. Past Due balances are subject to a finance charge equal to an annual percentage rate of ten and a half percent (10.5%) which shall accrue until the Past Due balance is paid in full. Client authorizes Ampersand , its outside collection agencies and other agents to contact them in connection with any and all matters relating to unpaid Past Due balances. Past Due balances may be referred to a collection agency to collect any amounts Past Due. Client agrees to pay costs related to the collection of Past Due balances including, but not limited to, any collection agency’s fees, reasonable attorney’s fees, and arbitration or legal costs. Payments shall be first applied to finance charges and then past due balances.
Periodic Price Updates
Periodically during the term of any Sales Contract issued under this Agreement, Ampersand will review and amend its pricing on Offerings which shall be reflected on the next invoice which shall serve as Notice of such change. Clients continued use of such Offering shall constitute an acceptance of a contract modification reflecting the new pricing on Offerings for the remainder of the term of the Sales Contract.
Suspension of Service for Non-Payment
Should Client have Past Due balances on their account more than 60 days, Ampersand may in its sole discretion suspend performance of any Offering under this Agreement until such time that all Past Due balances are paid in full.
Client may elect to unilaterally terminate an Offering by providing thirty (30) day Notice to Ampersand, paying all fees due until the final date of termination and paying an additional early termination fee equal to one hundred percent (100%) of the remaining contract term value of the Sales Contract. Remaining contract term value shall be calculated as the monthly recurring service cost (including taxes & fees) multiplied by the remaining months in the term of the Sales Contract.
In the event of voluntary termination of an Offering by Client, Ampersand shall not be obligated to provide transitional or replacement services to maintain continuity Client’s operations without the execution of a subsequent Sales Contract for such services.
Should Ampersand fail to materially perform, observe or comply with any of the terms, provisions, agreements, covenants or conditions of this Agreement and such failure shall continue thirty (30) days after receipt of Notice from Client of such failure by Ampersand then Client shall have the right to terminate this Agreement without payment of an early termination fee.
Should Client fail to pay when due any fee or monetary charge to Ampersand under this Agreement and when due and payable and such failure continues for a period of thirty (30) days after Notice from Ampersand of such failure or Client fails perform, observe or comply with any of the terms, provisions, agreements, covenants or conditions of this Agreement and such failure shall continue for thirty (30) days after receipt of Notice from Ampersand of such failure by Client, in addition to any other rights or remedies, Ampersand shall have the right to terminate this Agreement and Client shall pay Ampersand an early termination fee equal to one hundred percent (100%) of the remaining contract term value of all current Sales Contracts under this Agreement.
In the event of default termination of this Agreement by Ampersand, Ampersand shall not be obligated to provide transitional or replacement services to maintain continuity Client’s operations without the execution of a subsequent Agreement for such services. Further, Ampersand shall be entitled to irrevocably delete or destroy any and all Client data in its possession at the time of termination in its sole discretion.
All modifications to this Agreement shall be mutually agreed to by both Parties in a written contract amendment.
If Ampersand proceeds with providing additional services before a written contract amendment is agreed to, as required to maintain the proper operation of systems in the care of Ampersand, Ampersand shall not be required to continue to provide additional services if the Client does not agree to the contract amendment for those additional services. However, Client shall be responsible for any costs or fees associated with delivery of such additional services during the time in which they were provided.
For all work performed for Client under this Agreement, Ampersand acts as an independent contractor and not as an employee of Client. Consistent with that designation Ampersand shall have the right to supervise, hire, fire and direct its own employees, agents, contractors and assistants. Ampersand and Client understand and agree that the relationship between the Parties is not, and shall not be construed as, that of employer and employee, partnership, joint venture, joint employment, dual employment, teaming agreement or any other legal relationship other than an independent contractor relationship.
Client relies on and defers to Ampersand’s discretion and best independent professional judgment in choosing the methods and means by which Ampersand fulfills its responsibilities under this Agreement, subject to specific conditions and requests of Client as may be included in a Sales Contract issued under this Agreement.
Ampersand may, at its discretion, use a qualified subcontractor to provide services and other Offerings requested by Client.
Ampersand or its subcontractors shall furnish all tools, equipment and vehicles necessary to perform the services specified under this Agreement.
Ampersand, in its sole discretion and cost, shall provide Professional Development training for its employees, in order to better support and service the Client.
If requested by Client in a Sales Contract, Ampersand will send staff to Professional Development training, seminars, or conferences provided that Client is fully responsible for all registration, tuition, fees and travel expenses related to attending these events.
In the course of providing or receiving Offerings under this Agreement, a party may have access to information that is confidential and proprietary to the other party (“Confidential Information”). For the purposes of this Agreement, Confidential Information of a party means information, ideas, materials or other subject matter of such party, whether disclosed orally, in writing or otherwise, that is provided under circumstances reasonably indicating that it is confidential or proprietary. Additionally, Confidential Information includes, without limitation, the terms of this agreement, attachments to this agreement, pricing information including quotes and proposals, technical information or data, product ideas, methodologies, algorithms; and all personnel, client, contracts and financial information.
Ampersand and Client agree to ensure that Confidential Information is not inadvertently disclosed, altered or distributed publicly or to third parties. Notwithstanding the foregoing, Ampersand and Client may disclose Confidential Information if compelled by court order, subpoena, or other legal requirements, and with attorneys.
Data Processing Limitations
Client agrees, warranties and represents that they shall not transmit, process, store or transact data subject to protection by law or regulation (“Private Data”) with an Offering without prior execution of a Private Data Processing Amendmentto this Agreement. Client. Further in the event that Client transmits, processes, stores or transacts Private Data with an Offering without the execution of a Private Data Processing Amendment, Client agrees to:
- Indemnify Ampersand against any claim, fine, fee or other change imposed upon or assessed against Ampersand by a governmental authority arising out of an alleged violation of applicable law by Ampersand, Client or third party; and
- Indemnify Ampersand against any and all claims, and suits by third parties for damages, injuries, losses, expenses including court costs and reasonable attorney’s fees, arising out of, or resulting from the alleged or actual transmission, processing, storage or transaction of Private Data with an Offering.
Limitation of Liability
To the fullest extent permitted by law, the total liability, in the aggregate, of Ampersand and Ampersand’s officers, directors, partners, employees and subcontractors, to the Client and anyone claiming by or through the Client, for any and all claims, losses, costs, damages (including reasonable attorneys’ fees) or expenses resulting from or in any way related to the Agreement, from any cause or causes, including claims for negligence, shall not exceed the total of the preceding six (6) months service revenue received by Ampersand under this Agreement, or the total amount of one million dollars ($1,000,000), whichever is less. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, including claims of negligence, unless otherwise prohibited by law.
Client agrees to indemnify, hold harmless and defend Ampersand, its officers, directors, agents and employees (“Indemnitees”) from and against any and all claims, actions, damages, suits, liabilities, obligations, costs, fees, charges, and any other expenses whatsoever, including reasonable attorneys’ fees and costs, from third parties arising out of, or resulting from, Ampersand’s performance under this Agreement including, but not limited, to allegations of negligent or intentional acts of Indemnitees.
Ampersand shall secure and maintain Professional liability Errors and Omissions liability insurance (“E&O insurance”) encompassing the Services of Provider that are the subject of this Agreement with limits of one million dollars ($1,000,000) per claim and in the aggregate which shall be effective during the term of any Sales Contract executed under this Agreement.
Client shall secure all reasonably required first party and other insurance policy to properly mitigate their risk at their sole cost and expense.
Neither Party to this Agreement shall be considered to have Defaulted for failure or delay of performance if the failure or delay is caused by Force Majeure. Force Majeure means any event that directly or indirectly renders a Party unable, wholly or in part, to perform or comply with any of the terms, provisions, agreements, covenants or conditions of this Agreement if the event, or the adverse effects of the event, is outside of the control of, and could not have been prevented by, the affected Party with reasonable foresight, at reasonable cost, and by the exercise of reasonable diligence in good faith, and is not attributable to the negligence or willful misconduct of the affected Party. Force Majeure events include without limitation the following events (to the extent they otherwise satisfy the definition): an act of war, hostility, or sabotage; labor strikes or actions; act of nature; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any license); or other event outside the reasonable control of the obligated Party. Both Parties will use reasonable efforts to mitigate the effect of a Force Majeure event. This section does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures.
If either Party to this Agreement is rendered wholly or partly unable to perform its obligation under this Agreement because of Force Majeure, that party shall be excused from whatever performance is affected by the Force Majeure to the extent so affected, provided that:
- The suspension of performance must be of no greater scope and of no longer duration than is required by the Force Majeure;
- No obligations of either Party, including the payment of money, which arose before the occurrence causing the suspension of performance will be excused as a result of the occurrence; and
- The non-performing Party uses its best efforts to remedy its inability to perform.
The Parties agree to resolve any and all disputes or controversies arising out of or relating to this Agreement through (1) attempting to resolve the dispute or controversy informally through good faith discussion and negotiation, and if unsuccessful, (2) binding arbitration, as follows:
- Representatives of the Parties shall meet and attempt to resolve the dispute in good faith.
- If the dispute arises and is not resolved by representatives of the parties within twenty (20) days, the parties shall, within twenty (20) days after the end of this period, prepare and exchange their written positions, concerning the disputes or claims, attaching all relevant documents as necessary, and following the Notice requirements of this Agreement.
- Within twenty (20) days of receipt of Notice of such written positions, executives who have the authority to settle the dispute, shall meet and attempt to resolve the dispute in good faith.
If the dispute is not settled within twenty (20) days of such meeting, the Parties shall resolve the dispute through binding arbitration. The Parties will first attempt to mutually agree upon an arbiter to resolve the dispute. If the parties are not able to agree on an arbiter, the Commercial Arbitration Rules of the American Arbitration Association be used to 1) select an arbiter and 2) conduct the arbitration. The decision rendered by the arbiter shall be final, and binding upon the Parties without the right of appeal to the courts. The award rendered by the arbitration shall be final and judgment theron may be entered by any court having jurisdiction thereof. The costs and expenses of the arbitration, including but not limited to reasonable attorney’s fees shall be borne by the losing party, unless the arbiter determines that it would be manifestly unfair to honor this Agreement of the Parties and determines a different allocation of costs.
A Party is not required to follow this process if it determines that its strict adherence to the dispute resolution requirements would limit or impair its legal rights or remedies.
Choice of Law
Any civil action arising from this Agreement shall be brought in the Fourth Judicial District for the State of Alaska. The laws of the State of Alaska, excluding its conflicts of law rules, shall govern the rights and the obligations of the parties under this Agreement.
Tax and Expenses
Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind, including telecommunications fees, imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder; any such taxes, duties, charges, and fees currently assessed or which may be assessed in the future, that are applicable to the hardware, software, services, or other offering provided under this Agreement are for the Client’s account, and Client hereby agrees to pay such taxes, duties, charges, and fees. If Client is a tax exempt entity, they shall provide written certification of this status to Ampersand.
The address and contact for receipt of any Notice to Ampersand by this Agreement is listed below.
AlasConnect, LLC ATTN: Legal P.O. Box 71217 Fairbanks, AK 99707
The address and contact for receipt of any Notice to Client under this Agreement is the address provided by Client on the Sales Contract.
For all purposes of this Agreement, Notice will be in writing, delivered by regular or certified US Postal Service delivery, Commercial courier, or hand delivery between Parties.
Notice by facsimile (“fax”) and electronic mail (“email”) will be deemed courtesy. All Notices, shall be deemed to have been duly given five business days after being deposited with the US Postal Service, postage pre-paid; one business day after being deposited with a commercial courier; or when hand delivered. Either party may from time to time change the notice address set forth above by delivering Notice to the other party in accordance with this section setting forth the new address and the date on which it will become effective.
If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.
Neither a failure nor a delay on the part of Ampersand in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege.
In the event of any action, or any arbitration or judicial proceedings to resolve any dispute under this Agreement, or to enforce any term of this Agreement, or to protect or preserve any rights under this Agreement, the prevailing party shall be entitled to an award of its actual reasonable costs and acural reasonable attorney fees incurred.
Travel Expense Reimbursement
As required to deliver services under this Agreement Ampersand may, in its sole discretion, dispatch employees to remote locations or offices operated by Client to carry out services under an Offering. Client shall be fully responsible for reimbursing Ampersand for any incurred costs as a result of this dispatch, including but not limited to:
- Hotel or lodging
- Ground transport (Car rental, taxi)
- Transit travel time
Employment of Ampersand Staff
The Parties acknowledge that Client would gain substantial benefit and Ampersand would be deprived of such benefit, if Client were to directly hire any personnel employed by Ampersand. In the event Client hires a member of Ampersand’s professional staff, Client shall pay a fee equal to twenty five percent (25%) of the annual compensation being paid to the individual by Ampersand. Such fee is not intended as a penalty and is reasonably calculated based on the projected costs Ampersand would incur to identify, recruit, hire and train suitable replacements and is payable when the employee accepts the position with Client.
The rights and obligations of the parties to this agreement will be binding on, and will be of benefit to, each of the parties’ successors, assigns, heirs and estates.
Purchase orders will be for the sole purpose of defining quantities, prices and describing the Offerings to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected.
Last Revised - September 29, 2022