Master Services Agreement (OUTDATED)

EC Suite, LLC (ECS) and Client agree that this Agreement, all Addendums hereto, and all related Service Orders which are incorporated herein by reference constitute the complete agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings, written or oral regarding such subject matter.

This Agreement shall be effective from the date the first Service Order is accepted by ECS and will automatically terminate in the event there are no active Addendums or Service Orders hereto.

Client agrees to pay ECS for services ECS provides based on the terms and conditions of the Addendums and/or Service Orders relating to each service. In the event there is a conflict between this Agreement and any of its Addendums, the order of precedence will be:

1. This Master Services Agreement
2. All Addendums and Attachments in the order of last signed (most current)
3. Each Service Order
4. The Acceptable Use Policy (AUP)

1. Definitions

When used in this Agreement and its Addendums, the following definitions apply unless a specific definition is applied to and in any Addendum or attachment:

1. Agreement: This Master Services Agreement and all Addendums and attachments regardless of the effective dates of those Addendums and attachments.
2. Client: The company or individual contracting with ECS in order to utilize one or more of ECS' various services as indicated on the Addendums hereto.
3. Database: Any and all information received from Client and/or Customer which ECS' keeps in an electronic format for ECS' use. This may include at ECS' sole discretion a file containing only the Client's information and/or a universal file containing all of ECS' Clients' information
4. Website: The entire collection of web pages and other information (such as images, sound, and video files, etc) owned by Client to which this Agreement and its Addendums apply.

2. Additional Services

In addition, ECS may provide some services such as reporting and tracking as a no charge service. ECS reserves the right to stop providing these added services at any time for any reason. ECS reserves the right to begin charging for these additional services with 30 days written notice, and ECS also reserves the right to offer new services that are not covered by this Agreement wherein additional charges could incur should the Client choose to use them.

3. Database Ownership

Both parties own their own databases and nothing in this Agreement is intended to transfer that ownership. In order to provide the highest level of service to all ECS' clients, data provided by customers for venue access will be combined with data from all ECS' client customers. The combined database may be used for risk analysis of all clients' transactions. Ownership of the combined database remains with ECS. Credit card information from ECS' database will not be provided to the Client or any other party during the term of this Agreement or upon termination of this Agreement. However, ECS reserves the right to transfer the database in the event of a change in ECS' ownership. The Client shall be responsible for maintaining a record of all user identification information for the Client's own use as well as for backup in the event of a system failure that requires restoration.

Any unauthorized attempt to gain access to ECS' database or systems by the Client, or anyone directly or indirectly associated with or related to the Client, however remotely, will constitute a material breach of this Agreement. In the event of any such attempt to gain access, ECS may immediately terminate this Agreement, and the Client will immediately return to ECS all copies of any information obtained by this access.

ECS agrees that if ECS is currently processing transactions for Client's websites, if ECS becomes permanently incapable of processing e-commerce transactions, as dictated by the card associations' rules and with client's approval, ECS will to the best of its ability transfer the membership database(s) associated with Clients websites to ECS's acquiring bank who will transfer the databases(s) to the acquiring bank specified by Client at that time. This in no way transfers any right to or ownership of ECS's database to Client directly.

4. Termination for Cause

ECS may terminate either (a) this Agreement, (b) any Addendums or (c) all, immediately, if the Client is the subject of a bankruptcy order, become insolvent, make any arrangement or composition with or assignment for the benefit of creditors, go into voluntary or compulsory liquidation, have a receiver or administrator appointed over the Client's assets, or if the equivalent of any such events under the laws of any of the relevant jurisdictions occurs to the Client.

The Client also agrees to abide by the Terms and Conditions of the Master Services Agreement, each Addendum, and ECS' Acceptable Use Policies (AUP). ECS reserves the right to manually or electronically review website(s) to ensure there are no violations of the Terms and Condition or the AUP.

ECS' employees and those of related companies have entered into an agreement to protect the companies' confidential and trade secret information even after their employment. The Client agrees that it would be difficult for ECS to enforce this Agreement if the Client were to hire an employee or a former employee and it would be difficult for the employee to abide by the terms of the Agreement. The Client therefore agrees that the Client will not actively and knowingly hire or enter into a contract of any kind with a current or former ECS or related company employee for a period of six (6) months following the effective date of that employee's last date of employment with ECS or any related company without ECS' written prior approval. The use of independent employment agencies (as long as they are not directed to solicit such employees) or general solicitations (such as advertisements in publications), and the hiring of persons obtained through such methods, shall not be deemed a violation of this paragraph.

5. Privacy Policy

The Client understands that ECS' Privacy Policy. in part reads, "By using ECS' services, the Client agrees that we may release information obtained in the course of the client's use of ECS' services when it is believed, in ECS' sole and absolute discretion, that the release is appropriate or otherwise necessary to comply with the law, enforce our Agreement, and/or protect the contract and other rights of our Clients".

6. Taxes

ECS and the Client both agree to pay any and all taxes that are imposed on ECS or the Client's respective business. If ECS is required to pay taxes for the Client, ECS shall notify Client in writing via email, invoice or other form of written communication deemed suitable by ECS and the Client will immediately reimburse ECS for those taxes and any fines, penalties and interest, or the Client agrees that ECS may deduct them from payments to the Client.

7. Authorization

By signing this Agreement the Client is stating that the Client is the owner, operator, and/or a designated officer of the business, with the authority to enter in to this Agreement, and have obtained all the necessary licenses, copyrights and/or certificates required to perform the Client's obligations. The Client will follow all laws and legal regulations that relate to the Client's business regardless of where those laws and regulations originate, and will comply with any laws and regulations that may apply in the future.

8. Limitations of Liability

ECS WILL UTILIZE ITS BEST EFFORTS TO MAINTAIN ACCEPTABLE PERFORMANCE OF THE SERVICE, BUT ECS MAKES ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESSED OR IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, ECS DOES NOT WARRANT THAT ECS's APPLICATIONS WILL PERFORM IN THE MANNER EXPECTED OR WITHOUT INTERRUPTION, ERROR, OR DEFECT; OR THAT ANY REVENUE TO CLIENT WILL RESULT FROM THE ACTIVITIES CONTEMPLATED BY THIS AGREEMENT. EXCEPT AS SET EXPRESSLY FORTH IN THIS AGREEMENT, ECS DOES NOT MAKE ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS NOT SPECIFICALLY ENUMERATED.

ECS cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. ECS will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted, received, or stored on its system. ECS will not be liable to the Client or any of the Client's customers for any claims or damages which may be suffered by the Client or the Client's customers, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, unauthorized access to the Client's website as a result of hackers or password trading, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-delivery, or service interruptions whether or not caused by ECS' fault or negligence. ECS will not be responsible for the Client's venue not being accessible on the Internet due to circumstances not under ECS' direct control such as individual Internet user's own equipment capabilities, limitations, other Internet service provider limitations and/or browser software limitations.

Whenever possible ECS will give Client thirty (30) days written notice to the Client after which ECS may discontinue any service, or may require fulfillment of additional conditions ECS may choose to impose as a prerequisite for continuing any service. Client agrees that there may be circumstances beyond ECS' control that prevent giving Client advanced notice. ECS may discontinue service immediately for fraud committed by the Client or the Client's employees, illegal activity, or violations of its Acceptable Use Policies (AUP) and/or its other policies.

ECS' liability to the Client and any end user of the service or any other of its services is limited to the amount paid to and received by ECS for service not accepted. In no event will ECS be liable to the Client, or any end user or any other entity for any special, consequential, or other damages, however caused, whether for breach of contract, negligence or otherwise, even if ECS has been advised of the possibility of such damage.

The Client agrees that ECS is an Internet Service Provider ("ISP") under the Digital Millennium Copyright Act (DMCA) and understand that ECS is required under the DMCA to remove and/or have the Client remove any material that another party claims is infringing once ECS has received, in its sole judgment, a proper notification. The Client also agrees that if the Client does not comply with a written request from ECS to remove material under the DMCA or for any other reason, ECS may at its discretion block access any or all services provided under this Agreement including new member signups and renewals and hold all funds until such time as ECS is certain that the material is removed. ECS may, at its sole discretion, determine who is a "repeat infringer" and may terminate this Agreement and its Addendums without notice to the Client if ECS believes the Client to be a repeat infringer.

9. Indemnification

The Client is solely responsible for the Client's content, advertising and promotion, and that of anyone referring others to the Client's website. The Client is also responsible for insuring that the Client is the rightful owner or licensee for any copyrighted material, trademarks, or items that appear on the Client's website.

Each party will take all necessary measures to preclude the other party from being made a party to any lawsuit or claim regarding the service provided to or by the other party, or any end user. Each party hereby agrees to indemnify the other party and hold the other party harmless from any and all claims of whatever nature brought by anyone against either party in excess of the remedy set forth herein.

The parties hereby agree to reimburse the other party for any and all reasonable and actual expenses including legal fees associated with either party being involved with any civil, criminal, regulatory or investigatory actions brought by the other party or against the other party by anyone, including expenses associated with providing information that either party, in its sole discretion, believes it legally must provide or has been authorized by the other party to provide. The Client also understands and agrees that ECS will deduct those expenses from monies due to the Client and the Client agrees to reimburse ECS for any expense that exceeds what ECS is able to deduct from the Client's account.

Following prompt notice by reasonable means of any claim or action subject to indemnification, each party will defend and indemnify the other party, its affiliates, its agents, and its contractors against such claims or actions, including liabilities, costs, expenses, and reasonable attorney fees, involving loss or damage to personal tangible property, intellectual property rights, contracts, and/or criminal investigations resulting from the negligence or willful misconduct of the indemnifying party. Furthermore, Client will defend and indemnify ECS, its affiliates, agents, and contractors against all third party claims, liabilities, costs, and expenses including reasonable attorney fees, arising from or related to the misuse, modification, or resale of the Services by Client, or End Users, including any violation of the ECS AUP.

ECS will provide information and reasonable assistance, at Client's expense, as necessary or appropriate to defend or settle such claim or action as they relate to Client. ECS shall have the right to employ separate counsel and participate in the defense of any claim or action against Client at Client's expense. Client shall defend and indemnify ECS against any and all equitable and/or legal damages. In any event, ECS retains full and sole authority to defend or settle claims or actions as they pertain to ECS.

If ECS provides notice of an indemnification claim in accordance herewith and is not notified within ten (10) days that Client intends to defend such claim, ECS shall be entitled to defend, settle or compromise such claim, subject to the indemnification provided herein. If directed by law enforcement, or under exigent circumstances, ECS reserves the right to waive the ten day notice period.

10. Relationship of Parties

Nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. The Client will have no authority to make or accept any offers or representations on our behalf. The Client will not make any statement, whether on the Client's site or otherwise, that reasonably would contradict anything in this Section. Neither party is the agent of the other and ECS expressly disclaims responsibility for any conduct by the Client in violation of our terms of Agreement.

11. Proprietary Rights, Security, Confidentiality, and Access

Client and ECS mutually agree that:

1. Client owns and has absolute control over any content, design, material of any kind, and operation of Client's website and nothing in this Agreement or its Addendums and Attachments is intended to transfer that ownership or control to ECS.
2. Each party owns (or has uncontested legal rights to) their own intellectual property, content, databases, systems, trade secrets, trademarks, patents software, and applications and that nothing in this Agreement transfers any rights to these to the other. EC Suite hereby provides a limited license to use without modification or alteration any of the software and or applications provided under this Agreement and upon written request Client agrees to return or destroy all copies that may be in the Client's possession upon termination of this Agreement and /or any Addendums to this Agreement.
3. ECS and Client each hereby agree to hold each other's Proprietary Information in strict confidence and not to disclose such Proprietary Information to any third party without the prior written consent of the other party. Further, each party shall use the same degree of care it uses, but no less than a standard of reasonable care, with respect to its own Proprietary Information to prevent the unauthorized disclosure to a third party; provided, however, that the foregoing restriction shall not apply to information that is (a) known to the receiving party without restriction when received; (b) obtained from a source other than the originating party without known breach of another confidentiality agreement; (c) in the public domain when received or thereafter enters the public domain through no fault of the receiving party; (d) disclosed by the originating party without restriction; or (e) disclosed by the receiving party pursuant to statute, regulation of the order of a court of competent jurisdiction, provided that the receiving party has notified the originating party in order to permit the taking of appropriate protective measures.
4. Any attempt to gain access to ECS Databases or systems or those of its Service Providers by Client, or anyone directly related to Client, will constitute a material breach of this Agreement. In the event of any such attempt to gain access, ECS may immediately terminate this Agreement, and Client will immediately return to EC Suite all copies of any information obtained by this access.
5. If ECS becomes subject to a claim from a third party of patent, trademark, or copyright infringement, arising from Client's Content or system, Client will indemnify the ECS for all costs associated with a judgment imposed against ECS pursuant to the infringement claim.
6. Any use the trade name and/or trademarks of the other party in advertising or in any media as part of a "Client list" or "supplier" list must be done so with the prior approval, in writing, from the effected party.
7. ECS and its Service Providers will not allow use of information from the Database by any third party for purposes other than those services provided by ECS and it's Service Providers in accordance with this Agreement.

12. Payment

Client agrees that payment terms for the various services provided under this agreement may vary by type of service. ECS will strive to provide a single invoice each month that combines the charges for all of the services provided, but cannot guarantee that that can always be accomplished. Client agrees to pay all undisputed invoices within the time specified in the Addendum to this Agreement for each service provided by ECS. Client also agrees that if Client utilizes ECS' Transaction Processing Service, ECS may deduct payment for all services provided under this agreement from the weekly transaction settlement or chargeback reserve before remitting the payment to client.

13. Term

This Agreement will continue until terminated by either party under the provisions above. Either party may terminate this Agreement immediately and without notice if the other party violates the terms of this Agreement, it's Acceptable Use Policies (AUP), its policies, or the law. ECS may, at its sole discretion, suspend or cancel services for the Client's account if it stays inactive for any consecutive ninety (90) day periods. Reinstatement of the Client's account, after suspension or cancellation, will require ECS approval.

14. Force Majeure

The parties' obligations under this Agreement are subject to, and neither party shall be liable for, delays, failures to perform, damages, losses or destruction, or malfunction of any equipment or any consequence thereof caused or occasioned by, or due to acts of terrorism, fire, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment for supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond the parties reasonable control ("Force Majeure Event"). Notwithstanding the aforesaid, if a Force Majeure Event takes place and a party is materially hindered in the performance of its obligations under this Agreement or its normal business operations are delayed or become impossible, then, without limiting the hindered party's rights, the hindered party shall have the option, by giving the other party written notice, to suspend its obligations hereunder for the duration of any such contingency provided that such hindered party shall promptly upon discovery of the Force Majeure Event, use its commercially reasonable efforts to recommence performance of the affected obligations or provide an acceptable alternative to such services, provided that no such suspension shall exceed thirty (30) days. If any such suspension exceeds thirty (30) days, the non-hindered party shall have the right to terminate this Agreement at any time on written notice to the hindered party. No Force Majeure Event shall relieve a party of its payment obligations of any outstanding invoices and for services rendered prior to any Force Majeure Event hereunder by ECS

15. Invalid or Unenforceable Provisions

If any provision of this Agreement or its Addendums is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. The Client and ECS agree to renegotiate in good faith any term held invalid and to be bound by any mutually agreed to substitute provision.

16. Choice of Law: Venue

This Agreement is governed by and construed under the laws of the State of Arizona and the United States of America. The federal and state courts of the State of Arizona will have exclusive jurisdiction to adjudicate any non-arbitrable dispute arising out of this Agreement.

17. Disputes

1. General. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled first, by good faith efforts of the parties to reach mutual Agreement, and second, if mutual Agreement is not reached to resolve the dispute, by final, binding arbitration as set out in paragraph (B) below.
2. If there is a dispute, controversy, claim and/or disagreement concerning the interpretation, application or enforcement of or in any way arising under this Agreement or breach of this Agreement, ECS and Client shall work together in good faith to resolve such disputes within thirty (30) days from the date of the disputed incident. If ECS and Client fail to resolve a dispute within the aforementioned thirty (30) day period, either party may submit the dispute to arbitration. The arbitration will take place in Phoenix, Arizona before a single arbitrator under the auspices of the American Arbitration Association's ("AAA") Commercial Arbitration Rules currently in effect at that time. Disputes must be submitted to arbitration prior to any state, federal or international court action. Arizona law will be applied in the arbitration and any other subsequent legal hearings.
3. The arbitrator will not have the authority to award punitive damages or any other form of relief not contemplated in the contract. The arbitrator will render a written opinion setting forth the basis on which he or she arrived at the decision regarding each issue submitted to arbitration. The decision of each issue submitted to arbitration will be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it was arrived at. Judgment upon the award, if any, rendered by the arbitrators, may be entered in any court having jurisdiction thereof.
4. Should any legal action permissible under this Agreement be instituted to enforce the terms and conditions of this Agreement, in particular the right to collect money due on unpaid invoices, the prevailing party will be entitled to recover reasonable attorney's fees and expenses incurred at both the trial and appellate levels.
5. Injunctive Relief. The foregoing notwithstanding, each party shall have the right to seek injunctive relief in an applicable court of law or equity pending resolution of the dispute in accordance with the foregoing.

18. Entire Agreement; Modifications

This Agreement and any Addendums and/or attachments and/or service orders hereto set forth the entire Agreement and understanding between the parties and merges all prior discussion between them. The terms and conditions of this Agreement are posted on the EC Suite site http://www.ecsuite.com/terms_and_conditions.php. ECS reserves the right to change these terms and conditions by posting such changes on the EC Suite site at http://www.ecsuite.com/terms_and_conditions.php. Continued use of ECS' service by Client following such changes constitutes acceptance by Client of the current terms and conditions.

19. Notices

Client is responsible for providing ECS with an ECS Contact Change Form at any time there is a change in the contact information provided on the initial Service Order. Written notices to Client will be considered delivered when emailed to the email address on the initial Service Order or the latest Contact Change Form received by ECS.

20. Assignment

Neither ECS nor Client shall assign this Agreement or any interest therein, without the prior written consent of the other party, except in the event of the sale of all or the majority of either party's stock or assets or in the event of other corporate reorganizations, which consent shall not be unreasonably withheld or delayed. Any assignment prohibited hereby shall be null and void.

21. Changes

For the Client's own protection, the Client understands and agrees that ECS will only accept changes and modifications to this Agreement or any Addendums that are in writing and signed by the individual(s) signing this Agreement.

22. Partial Invalidity

If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. We agree to renegotiate in good faith any term held invalid and to be bound by mutually agreed substitute provision.

23. Applicable Law, Jurisdictional Matters

This Agreement is governed by and construed under the laws of the State of Arizona and the United States of America. The federal and state courts of the State of Arizona will have exclusive jurisdiction to adjudicate any non-arbitrable dispute arising out of this Agreement. You understand that by using ECS' services, you agree that we may release information obtained in the course of your use of ECS' services when it is believed, in ECS' sole and absolute discretion, that the release is appropriate or otherwise necessary to comply with the law, enforce our Agreement, and/or protect the contract and other rights of our Clients.

In the event of changes in ownership of Client or, website(s) covered by this Agreement, the Client or anyone so designated on the Account Authorization Form must notify ECS in writing of the change of ownership. ECS may then require the new owner to execute a new Agreement and Addendums with ECS. In the event the Client wants to change the information in this Agreement regarding the payments to Client, the Client or anyone so designated on the Account Authorization Form must notify ECS in writing.