Master Business Agreement

This agreement is deemed executed as of the date of proposal acceptance and is incorporated as part of the proposal, made between MOREFIELD COMMUNICATIONS, INC., 35 North 35th Street, Camp Hill, Pennsylvania, 17011 (the “COMPANY”) and the customer electronically signing this online quote (the “CUSTOMER”).

RELATIONSHIP OVERVIEW. COMPANY and CUSTOMER maintain a relationship whereby COMPANY furnishes certain business systems (hereinafter called “SYSTEM”) to CUSTOMER on a recurring basis. A SYSTEM may be comprised of major equipment, implementation services and/or support services. A proposal may be made up of documents including a Bill of Materials, Statement of Work, and/or Support Agreement options. Unless otherwise agreed in writing, the terms and conditions of this Agreement shall apply to any Proposal commenced within twenty-four (24) months of the execution of this Master Agreement.

PURCHASE PRICE AND PAYMENT TERMS. A. The purchase price and payment terms for any Proposal shall be set forth in the Bill of Materials, Statement of Work, and/or Support Agreement options as applicable.

Any sales tax or other taxes which may be levied upon or collectible on the retail price of any goods or services under this Agreement shall be payable solely by CUSTOMER. Late payment charges of 1½% per month interest will be added for past due invoices pertaining to this agreement and subsequent additions thereto. COMPANY notes that the above price reflects a cash discount on both material and services. Any invoice satisfied by Electronic Fund Transfer would also receive the cash discount. CUSTOMER agrees to pay an additional convenience fee of 4% for any payment that is satisfied by use of a credit or purchase card. Any hardware and software equipment sales provided in the Bill of Materials are final and products listed herein may not be returned unless previously authorized. Morefield may charge a 35% restocking fee on all returned items. Final return authorization is subject to original equipment manufacturer (OEM) approval.

WARRANTIES AND EXCLUSIONS. A. CUSTOMER acknowledges that COMPANY is not the manufacturer or the developer of any software that is used to operate the SYSTEM. CUSTOMER acknowledges that it has selected the size, model, design and brand of the SYSTEM, and each item of hardware and software listed in the Bill of Material, using its own judgment. Except as set forth herein, COMPANY disclaims any and all warranties concerning the SYSTEM and services to be rendered hereunder, whether express or implied, including, without limitation, any warranty of merchantability or fitness for any particular use or purpose.

B. To the extent COMPANY agrees to service and maintain the SYSTEM during any applicable manufacturer’s warranty period, the terms of such agreement shall be set forth in the Support Agreement options.

C. Except as otherwise agreed in the Statement of Work, it is expressly understood that any liability of COMPANY in connection with its performance under this Agreement, and CUSTOMER’S exclusive remedy for any damages arising from the performance or non-performance by COMPANY hereunder, is and shall be (a) for damages to real or personal property, or for bodily injury to any person, the proximate cause of which was the sole negligence of COMPANY, CUSTOMER shall have the right to proven damages; (b) for COMPANY’S failure to perform any other material term or condition of this Agreement, where such failure continues for thirty (30) days after COMPANY’S receipt of written notice from CUSTOMER, CUSTOMER’S exclusive remedy shall be the right to cancel this Agreement without the incurrence of cancellation charges as set forth herein or charges for services not yet provided; and (c) for claims other than set forth above, COMPANY’S liability shall be limited to proven direct damages not to exceed the purchase price of the product or service giving rise to the claim. COMPANY shall not be liable for any indirect, special, exemplary, incidental, or consequential damages of whatever kind and however caused, including, but not limited to, lost profits, loss of income, commercial loss, personal injury, or lost, corrupted or misappropriate data or messages, as a result of the use of or ownership of the SYSTEM or any item(s) of equipment covered by this Agreement or the maintenance thereof. This provision shall apply to any additional items of equipment added to or incorporated into the SYSTEM by COMPANY or any other party at any time, whether as a wholly new item or as a replacement item.

D. COMPANY does not warrant uninterrupted or error free operation of the SYSTEM. COMPANY makes no representation that the SYSTEM is technically immune from or prevents fraudulent or unauthorized intrusions into the SYSTEM, and/or fraudulent or unauthorized use of the SYSTEM. Fraudulent intrusions include, but are not limited to: unauthorized access to CUSTOMER’s leased or owned telecommunications transmission facilities used to originate or terminate data and/or voice communications, interception of CUSTOMER’s equipment attached to its Network, and unauthorized intrusions, including the transmission of computer viruses, into CUSTOMER’s Network, software, files, and data stored on CUSTOMER’s Network and equipment attached to CUSTOMER’s Network. CUSTOMER agrees to indemnify COMPANY and assumes the risk of any and all fraudulent or unauthorized intrusions or use of the SYSTEM, and consequential damages arising therefrom, and agrees to pay for all charges incurred as a result of any thereof.

TERMINATION. CUSTOMER acknowledges that in order to fulfill its obligations under this agreement, COMPANY will expend substantial sums of money and incur unrecoverable costs. When the transaction is established as on outright purchase with COMPANY, i.e. not leased, and the project has not commenced, CUSTOMER may terminate the Proposal upon payment of a CANCELLATION FEE equal to thirty percent (30%) of the Purchase Price detailed on the Bill of Materials as compensation for the COMPANY’s costs. If the project has commenced, the CANCELLATION FEE will be labor charges expended through the date of cancellation, labor charges to de-install the SYSTEM, 30% of the Purchase Price detailed on the Bill of Materials, and the retail price for all SYSTEM components in the Bill of Material not returned or returned but not in saleable condition as new, to be determined by COMPANY. All amounts paid prior to cancellation by CUSTOMER to COMPANY as payment for the Proposal shall be applied to payment of the CANCELLATION FEE. If CUSTOMER has paid amounts in excess of the CANCELLATION FEE, COMPANY agrees to refund the excess. CUSTOMER shall cooperate with COMPANY in repossessing any such Equipment effected by this Agreement.

When the transaction will be financed via a third party leasing firm, the CANCELLATION FEE will be defined in the lease package documentation.

Any Support Agreement options may be terminated for cause by CUSTOMER should COMPANY fail to perform in a manner which is not remedied within 15 days of COMPANY receiving written notice.

NON-SOLICITATION. CUSTOMER agrees that it will not solicit for employment, hire or contract with any of COMPANY’S existing or former technical or professional personnel or employees for a period of the later of twenty-four (24) months following execution of this Agreement or twelve (12) months following expiration of any applicable manufacturer’s warranty period. CUSTOMER agrees to pay COMPANY the sum of $20,000 as liquidated damages (the parties acknowledging that actual damages would be difficult to calculate with reasonable certainty) for the breach, or attempted breach, of this provision for each occurrence thereof.

INDEMNIFICATION. It is further agreed by and between CUSTOMER and COMPANY that CUSTOMER will defend, indemnify, and hold harmless COMPANY, its owners, officers, directors, shareholders, agents, insurers, personnel, employees, servants, assigns, successors, predecessors, parent companies, subsidiaries, and affiliated companies (collectively the “Indemnified Parties”) from all loss, damage, direct or consequential, cost or expense (including attorney’s fees) to any third party which arise as a result of, directly or indirectly, a claim related to COMPANY’s performance of the Project. This provision shall not apply to claims where it is judicially determined that the claim was the result of the negligence of COMPANY in its performance of the Project. It is further agreed by and between CUSTOMER and COMPANY that CUSTOMER will defend, indemnify, and hold harmless the Indemnified Parties from all loss, damage, direct or consequential, cost or expense (including attorney’s fees) as a result of, or arising from, directly or indirectly, any liability or claim of liability that the SYSTEM has been used in a fraudulent, improper, or unauthorized manner, including but not limited to use inconsistent with state or federal monitoring and recording laws.

RISK OF LOSS. Risk of loss to the SYSTEM shall pass to CUSTOMER upon the delivery of the SYSTEM to CUSTOMER’S location.

FORCE MAJEURE. COMPANY shall have no liability for delays, failure in performance, or damages due to fire, explosion, power failures, pest damage, lightning or power surges, strikes or labor disputes, water, acts of God, the elements, war, civil disturbances, acts of civil or military authorities or the public enemy, manufacturer caused shortages of parts and equipment, transportation facilities, fuel or energy shortages, performance or availability of communications services or network facilities, unauthorized use of the SYSTEM, or any other cause beyond the control of COMPANY. CUSTOMER and COMPANY agree that in the event of the above occurrences, time is of the essence in working to restore operation of the SYSTEM, and each agrees to use their respective best efforts to restore operations of the SYSTEM.

GENERAL. A. Each party acknowledges that it has read the Agreement, understands it, and agrees to be bound by its terms. The parties further agree that this is the complete and exclusive statement of Agreement of the parties with respect to the subject matter hereof and that it supersedes and merges all prior proposals, understandings, and Agreements, whether oral or written, between the parties with respect to the subject matter hereof. The terms of this Agreement may not be modified except by written instrument duly executed by the parties hereto and shall apply to this Proposal between the parties and remain in effect until the conclusion of work described in this proposal and or termination of any agreements in this proposal.

B. This Agreement and the party’s obligations hereunder shall be governed, construed, and enforced in accordance with the laws of the Commonwealth of Pennsylvania. All disputes under this Agreement shall be resolved by litigation in the courts of the Commonwealth of Pennsylvania, including the federal courts therein and the parties each consent to jurisdiction of such courts, agree service of process by mail and hereby waive any jurisdictional or venue defenses otherwise available to it. All written notices to COMPANY under this Agreement shall be deemed given only when actually delivered personally to Morefield Communications, Inc. or when deposited in the U.S. Mail, certified prepaid, to Morefield Communications, Inc. at the following address: 35 N 35thStreet, Camp Hill, Pennsylvania, 17011.

C. In the event that any provision of the Agreement is held invalid, illegal, or unenforceable, the remaining provisions shall be enforced to the maximum extent permitted by applicable law. Neither party may assign its rights or duties under this Agreement without the prior written consent of the other party, except to a successor of all or substantially all of the business. The waiver by either party of any term or condition of the Agreement shall not be deemed to constitute a waiver of any further or additional rights that such party may hold under this Agreement.

D. No action, whether based on contract, strict liability or tort, including any action based on negligence, arising out of the performance of Services under this Agreement, may be brought by either party more than one (1) year after such cause of action accrued, except that an action for non-payment may be brought within two (2) years of the date of last payment. In enforcing its rights under this Agreement, including any action to collect amounts due hereunder, COMPANY shall be entitled to recover its reasonable attorney’s fees, costs, and related expenses from CUSTOMER.

E. COMPANY has provisioned our Professional Services allowance with the understanding that the Carrier or Network Service Provider will independently provide a correctly provisioned, fully tested, completely operational and stable circuit(s) on the published due date. If the Carrier is unable to do so, and requests support from the COMPANY, or delays the conversion over to the new circuit(s), COMPANY will treat the matter as a Change Order to the Agreement.


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