Master Services Agreement

Master Services Agreement (MSA) Number: Nimble Technologies MSA 2022

This Master Services Agreement Nimble Technologies MSA 2021 (‘MSA’), effective as of the date executed by both parties as set forth on the signature page hereto between Nimble Technologies, LLC(‘Nimble’), and the customer (‘Client’) Replaces in full any previous MSA, terms, or agreements between Nimble and Client. In the event of any conflict between the Agreement and a Statement of Work (“SOW”), this Agreement shall control unless the SOW specifically states otherwise.

1. Scope

The terms in the Agreement are solely binding to all Clients unless superseded with another Agreement.

2. Expiration of MSA

This MSA is perpetual until replaced by a superseding Agreement.

3. SOW Term and Termination

  1. This MSA is perpetual until replaced by a superseding Agreement.
  2. Notwithstanding anything to the contrary in the Agreement, upon expiration of the Term, the agreement shall automatically renew for successive periods of the same term select herein (Each, an additional “Term”) unless either party provides written notice of the termination which is received by the non-terminating party not less than thirty (30) days prior to the end of the then current renewal Term. If the SOW Term includes as-a-Service hardware under section 5 below, an auto-renewal Term will include the replacement of the hardware from the prior Term. If the SOW Term under Section 5 below includes hardware purchases, the hardware will not be replaced automatically as part of an automatic renewal without affirmative Client consent.
  3. The Agreement shall terminate on the last day of the Term in which either party has provided notice of termination sufficient to avoid an automatic renewal pursuant to paragraph 2(b) above. Notwithstanding anything to the contrary in the Agreement, the Agreement shall not be terminatable by the parties without cause, except as set forth in paragraphs 2(b) and 2(c).
  4. Nimble Technologies shall be permitted to propose adjustments to the fees it charges Client for any renewal term by providing written notice of the proposed rate change no less than sixty (60) days prior to the beginning of a subsequent term.
  5. Clients requesting termination of the Agreement outside of the Term and without cause as set forth in paragraph 2(c) shall be responsible for the balance of the contract in full.
  6.  Either party may terminate this agreement for cause upon any material breach hereunder if the breach is not cured within sixty (60) days after written notice to the breaching party.

4. Description of Work to be Performed

All work to be performed will be specified in an SOW.

5. Timeframe for Work to be Completed

Timeframe for work to be completed for an SOW will be specified in the SOW.

6. Fee Schedule and Payment Terms for SOW

6.a.
Implementation Fee: 100% of Implementation Fee due at signing (the “Total Implementation” as defined in section 5 of the SOW, including Deposit, Professional Services, and for POSaaS the First Monthly Amount)* if less than $5,000. For Implementation Fees over $5,000, 50% of Implementation Fee is due at signing and 50% of Implementation Fee due upon delivery of services unless otherwise specified in the SOW.

6.b.
Notwithstanding anything to the contrary in the Agreement, Nimble Technologies reserves the right to suspend development or Implementation if Customer does not pay the Initial Fee due at signing in accordance with the payment terms specified herein.

6.c. Managed Services Fees
6.c.i.
Any Managed Service Fee begins upon delivery and continues for a term as specified in an SOW.

6.c.ii.
Managed Services Fees are billed on the 1st day of the month in advance of the period being served

6.c.iii.
The Managed Service Fee is supplemental and in addition to any Managed Service Fees already in place and includes any usage levels (pages served) previously agreed upon in writing between the parties.

6.c.iv.
Categorizations of included and billable support for “Worry Free”, “Block of Support Hours” and “No Contract” support options are detailed in Exhibit B.

6.c.v.
Support that falls outside of the scope of services detailed in Exhibit B are considered billable. An authorized representative of the customer requesting billable work is considered valid authorization for the work to be performed.

6.c.vi.
Billable support will be billed in 15-minute increments at the hourly support rate of $150 unless the customer has purchased a pre-paid block of monthly hours for billable work.
6.c.vii.
All SOWs governed by this Agreement are granted a contractual discount of Error- Invalid entry
6.d.
If a Client Agreement does not auto-renew pursuant to section 2(b), Nimble Technologies will contact Customer at least 60 Days prior to expiration of the Term to discuss renewal options. If the parties have not executed a renewal prior to expiration of the Term, Nimble Technologies may elect to continue to provide Managed Services at a rate equal toOne Hundred Thirty (130) Percentof the then-existing monthly Managed Service Fee and removal of any contractual discounts until a new renewal or contract is subsequently executed by the parties or the service is discontinued by customer request.

6.e.
Customers requesting to discontinue services with Nimble Technologies at the end of their contract will be responsible for any professional services or fees from Nimble Technologies to migrate or export their data to a third party at the standard hourly rate.
6.f.
Additional seats of contracted services may be added at the same contractual rate for the remainder of the contract terms. Cancelation of additional seats above the contractual level may not be subject to termination penalties. Cancelation of services below the contractual threshold will be subject to early termination penalties. Additional POSaaS equipment may require additional fees to be added for a partial Term.

6.g.
Net 15 Payment Schedule. A late fee of the greater of twenty five dollars ($25) or one and one half percent (1.5%) of the total outstanding invoices will be applied to any past due invoices.

6.h.
Any contractual discounts will be voided on contracts that exceed 60 Days days past the due date of the invoice.

6.i.
When an account is 90 Days days past due, Nimble Technologies reserves the right to discontinue any provided service or services without notification and initiate recovery of any “as-a-Service” hardware. Accounts 90 Days past due may be sent to a collection agent at Nimble Technologies’s discretion. Any fees incurred as part of collections activities will be added to the customer’s bill.

6.j.
Recurring monthly services fees under Two Thousand Dollars ($2,000) on an invoice must be paid via credit card or ACH on file.

6.h.
All fees are in US Dollars (USD) and are exclusive of sales and use taxes, which, if applicable, shall be applied to the invoice total. There will be a three percent (3%) processing fee for all credit cards and a ten dollar ($10) fee for check payments; ACH payments do not incur a processing fee. There is a thirty-five dollar ($35) fee for returned drafts.

6.i.
Customer shall be responsible for all Customer directed, pre-approved travel and other out-of-pocket expenses in support of an SOW.

7. Supremacy

The terms of the Agreement and any SOW shall prevail notwithstanding any conflicting terms or conditions which may appear on, or be incorporated by reference in, a purchase order. Any other terms or conditions, whether additional, different or inconsistent with those of the Agreement or an SOW presented in connection with a purchase order shall be void and of no effect, and will not be considered an amendment to the Agreement or an SOW unless it is in writing signed by both parties, expressly referencing the Agreement or SOW and the section(s) being modified.

8. Indemnity

Notwithstanding anything to the contrary in the Agreement, Nimble Technologies shall have no indemnity obligation under the Agreement to the extent that a claim arises from specifications or functionality implemented at the request of Customer.

9. Customer Responsibilities

9.a.
Customer’s failure to meet the following Customer Responsibilities may result in delays or the need for additional work to be quoted/added to an SOW.

9.b.
Evaluation, Development and Testing: Customer shall provide two sets of credentials for login for all Customer environments (development, staging, production, etc.), which give access to test user accounts with all respective functionality to be supported in an SOW. Accounts will be used to assess, develop and test functionality for paths that pertain to a “logged in” user state. In the absence of these credentials, Nimble Technologies is not able to evaluate or develop new features, nor able to perform full testing, and will not be responsible for any issues that arise due to the lack of testing. In accordance with PCI, HIPAA, and other federal and state requirements, Customer shall not provide live accounts for testing.

9.c.
Access to Staging Environments: In case a VPN tunnel is required, Nimble Technologies can support SSL or IPSec VPN configuration for user access or site-to-site tunnel for network-to-network.

9.d.
Access to Stable Code: During implementation, Customer shall make new code available without changes at the sources listed in an SOW. Sources must be correct, stable and error free. Customer shall make all content provided by Customer available upon Nimble Technologies’s request.

9.e.
Third Party Products: Nimble Technologies shall not be liable for claims arising out of or in connection with third-party services, products or materials not being supplied by Nimble Technologies (“Third-Party Products”), even if Nimble Technologies is implements or enables such Third-Party Products on behalf of Customer. All customer support for Third-Party Products are provided by the applicable third-party vendor, and Customer’s use of Third-Party Products is conditioned upon Customer’s compliance with such third-party vendor’s terms of use, if any. Additionally, the implementation and/or launch of Third-Party Products may be conditioned upon Customer’s execution of a separate agreement directly with the third-party vendor and/or the third-party vendor’s approval.

9.f.
Access to Menus and Initial Programming Data: During implementation, if Nimble is responsible for initial programming of the POS system, Customer shall provide required information to Nimble no less than 14 days prior to the anticipated go-live target date. Customer requested changes less than 14 days to go live will be handled as best-effort.

9.g.
Facility Preparation: Unless otherwise specified in an SOW, the customer is responsible for ensuring that the facility is prepared for the installation of the POS system prior to the installation date in accordance with the facility requirements for SmartPOS. Facility preperation includes but is not limited to ensuring sufficient power, network capacity, payment terminals, and internet for POS operations.

Exhibit A – Service Level Agreement

The following table shows the severity levels for various types of support issues. While all support issues will be resolved as soon as possible, higher severity issues are prioritized over lower severity issues.

Severity Descriptions
Severity / Priority 1 – System or Service not available
All users and functions unavailable

Severity / Priority 2 – Significant Degradation
Large number of users or business critical functions affected
Severity / Priority 3 – Limited Degradation of service
Limited number of users or functions affected, business process can continue with workarounds

Severity / Priority 4 – Customer requested change or question
Little to no impact to customer operations.

Support Tiers
The following details and describes Nimble Technologies Support Tier Levels

Tier 1 Support
All support incidents begin in Tier 1, where the initial trouble ticket is created, and the issue is identified and documented, and basic hardware/software troubleshooting is initiated. Phone calls are typically answered in less than 60 seconds. Issues that require escalation are typically escalated in 2 hours or less.

Tier 2 Support
All support incidents that cannot be resolved with Tier 1 Support are escalated to Tier 2, where more complex support on hardware/software issues can be provided by more experienced engineers. Response time for issues escalated to level 2 is typically 4 hours or less. Severity 1 and 2 issues that cannot be resolved in tier 2 are typically escalated in 2 to 4 hours.

Tier 3 Support
Support incidents that cannot be resolved by Tier 2 support are escalated to Tier 3, where support is provided by the most qualified and experienced Engineers who have the ability to collaborate with 3rd party (vendor) support engineers to resolve the most complex issues. Response time for issues escalated to level 3 is typically 4 hours or less.

Service Request Escalation Procedure
1. Support request is received
2. Trouble ticket is created
3. Issue is identified and documented in the help desk system
4. Issue is qualified to determine if it can be resolved through Tier 1 Support

If the issue can be resolved through Tier 1 Support
Level 1 Resolution – Issue is worked to successful resolution
1. Quality Control- Issue is verified to be resolved
2. Trouble ticket is closed after problem resolution details have been updated in the help desk system.

If the issue cannot be resolved through Tier 1 Support
1. Issue is escalated to tier 2 support
2. Issue is qualified to determine if it can be resolved through Tier 2 Support
If the issue can be resolved through Tier 2 Support
1. Issue is worked to successful resolution
2. Quality Control- Issue is verified to be resolved
3. Knowledge Capture – Issue resolution and troubleshooting steps are captured in the corporate wiki and analyzed for inclusion in to Tier 1 procedures for faster future resolutions.
4. Trouble ticket is closed after problem resolution details have been updated in the help desk system.

If the issue cannot be resolved through Tier 2 Support
1. Issue is escalated to tier 3 support

If the issue can be resolved through Tier 3 Support
2. Issue is worked to successful resolution
3. Quality Control- Issue is verified to be resolved
4. Knowledge Capture – Issue resolution and troubleshooting steps are captured in the corporate wiki and analyzed for inclusion in to Tier 1 and 2 procedures for faster future resolutions.
5. Trouble ticket is closed after problem resolution details have been updated in the help desk system.

If the issue cannot be resolved through Tier 3 Support
1. Determine if the issue requires on-site support (additional fees may apply)
2. Determine if the issue requires escalation to third party vendor. Additional fees may apply, Client is responsible for any third-party support fees.
3. Determine if the issue requires escalation to Nimble Development.

Hardware Maintenance

New equipment provided under an SOW is warrantied for the duration of the Term up to a maximum of 36 months from the start of the Term unless otherwise specified in the contract. Clients operating under an as-a-Service agreement will receive new equipment at the start of each Term unless otherwise specified in the contract.

Clients that have purchased equipment will be responsible for any hardware issues after the expiration of the warranty period. For optimal performance and to help minimize potential business impact, Nimble Technologies recommends customer maintain all hardware under warranty and replace components every three years.

Nimble is not responsible for hardware that has been damaged from theft, abuse, neglect, or other forms of physical damage. Nimble is not responsible for hardware provided by a third party, hardware already owned by Client, or hardware purchased as part of an SOW that has exceeded its warranty period.

Equipment that is replaced in good faith under warranty that is found to have been abused and/or physically damaged will be billed to the customer at the customer’s existing or contractual rate.

Return of as-a-Service Hardware
Equipment returned to Nimble Technologies, either as part of a renewal or termination of an as-a-Service or other non-sale based contract, is expected to be in working order and in reasonable condition with no physical damage or signs of abuse. Normal wear-and-tear is expected, but cracked cases / screens, holes or dents in the touch screen that impact functionality, physical damage from heat / fire, water, etc, are not considered normal and may result in customers being billed for repair or replacement costs.

Nimble Technologies – Confidential

Exhibit B – Scope of Support
The following details the support models offered by Nimble Technologies.
Worry Free Support
Includes unlimited phone and email support for all non-third party support issues. Does not include on-site support, project-based professional services work, or work that would be considered general restaurant operations (e.g., performing end-of-day routines). Worry Free POS support requires a minimum number of stores in a chain / franchise to be eligible.
On-Site Support
This is a separate billable item for on-site support service for work that cannot be resolved remotely. Because on-site support is separately billable, usage requires positive affirmation from the customer to implement.

On-site support is billed with a two-hour minimum and will include any applicable reasonable travel and living expenses.

Block of Support Hours

Support outside of software issues with the point-of-sale system are billable. Customers will pre-pay for a pre-determined block of monthly support hours at a discounted rate that billable support incidents will draw from. Once the block of hours is exhausted, additional work will be billed at the non-discounted rate.

No Support Contract

All support outside of issues with the point-of-sale system in this model is billable at the non-discounted hourly rate. Request of support is considered acceptance to be billed.

Support Services Description

Endpoint Protection (Optional on SOW)
Worry Free Support
Includes antivirus, antimalware, clean-up services from virus/malware on POS systems and equipment.

Block of Support Hours

Includes antivirus and antimalware. Clean-up services from virus/malware on POS systems and equipment will be billed against block of support hours. Overages to be billed at the standard rate.

No Pre-paid support contract

Includes antivirus and antimalware. Clean-up services from virus/malware on POS systems and equipment will be billed at the standard rate.

Firewall / Internet (Optional on SOW)
Worry Free Support

Includes adding or changing firewall rules, support for firewall issues / troubleshooting, changes to WiFi environment, remote firewall monitoring and optional failover internet monitoring, maintaining firewall warranty / service contract, and active unified threat management updates includes antivrus and intrusion prevention services.

Block of Support Hours

Includes maintaining firewall warranty / service contract and active unified threat management updates, including antivirus and intrusion prevention services. Changes to firewall configuration, firewall support / troubleshooting, changes to supported WiFi configuration will be billed against the the block of support hours. Overages will be billed at the standard rate.
No Pre-paid support contract
Includes maintaining firewall warranty / service contract and active unified threat management updates, including antivirus and intrusion prevention services. Changes to firewall configuration, firewall support / troubleshooting, changes to supported WiFi configuration will be billed at the standard rate.

POS Support
Worry Free Support

Includes support for POS software issues, general POS support / questions, menu maintenance and support, SmartPOS Training support, support for Nimble provided On Line ordering, Nimble Technologies SmartPOS application support, and support for Nimble provided hardware still under warranty, and general support for non-Nimble provided hardware*
Block of Support Hours
Includes support for POS software issues, general POS support, general support for Nimble provided On Line ordering, Nimble Technologies SmartPOS application support, and support for Nimble provided hardware still under warranty. Training, menu issues, and non-Nimble hardware support will be billed against the block of support hours. Overages will be billed at the standard rate.

No pre-paid support contract

Includes support for POS software issues, general support for Nimble provided On Line ordering, Nimble Technologies SmartPOS application support, and support for Nimble provided hardware still under warranty. All other items will be billed at the standard rate.

* Replacement hardware is billable

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