MASTER SERVICES AGREEMENT (MSA)
This Master Services Agreement (hereinafter, the “Agreement”) is entered into on [Contract Date], by and between:
OPENNUBE LLC (hereinafter, “Opennube”), on the one part; and the Client, duly incorporated under the laws of the United State of America (hereinafter, the “Client”), on the other part.
Opennube and the Client are hereinafter referred to collectively as the “Parties” and individually as a “Party.”
This Agreement sets forth the terms and conditions under which Opennube will provide, and the Client will acquire, the services described herein.
Both Parties agree that these terms and conditions shall exclusively govern their contractual relationship, excluding any other terms, conditions, warranties, or representations not expressly stated in this Agreement.
The undersigned representatives declare that they have full authority and legal power to bind their respective Parties to all terms and obligations set forth in this Agreement and its annexes.
This Agreement is executed in two (2) counterparts of equal form and date, each Party retaining one duly signed copy.
OPENNUBE ARGENTINA LLC
Name:
Title:
Date:
CLIENT
Name:
Title:
Date:
GENERAL TERMS AND CONDITIONS
1. Definitions and Interpretation
For the purpose of this Agreement, the following terms shall have the meanings set forth below:
“Confidential Information” means any non-trivial or non-obvious information, whether commercial, technical, or otherwise related to the business or products of either Party (or of any third party that has supplied such information under confidentiality obligations), and in any form (including, without limitation, designs, documents, and electronic media readable by a computer).
“Commercial Use” means any use of Equipment, Software, or Services provided by Opennube under this Agreement for the Client’s business purposes.
“Effective Date” means the date this Agreement is executed, or if not specifically stated, the date of signature on the first page hereof; in the case of an Order, it means the date the Order is signed.
“Intellectual Property Rights” means patents, copyrights, database rights, design rights, trademarks, trade names, goodwill, know-how, and proprietary information rights.
“Order” means the technical and commercial document to be signed by Opennube and the Client to formalize a particular supply in response to a Client’s request, containing at least:
(i) Software (if included),
(ii) Equipment (if included),
(iii) Services to be provided,
(iv) Site of installation,
(v) System specifications,
(vi) Service specifications,
(vii) Billing and payment terms, and
(viii) Corresponding price.
“Specifications” means the technical specifications of the Equipment and Software as published from time to time by Opennube and/or its suppliers, as applicable.
“Services” means Opennube’s services, including, without limitation, Professional Services, Consulting Services, Support Services, and Cloud Services, as described in the Annexes to this Agreement.
“Documentation” means user manuals, guides, and other explanatory materials provided in printed or electronic format by Opennube to the Client.
“System” means the Equipment, Software, and related Documentation supplied by Opennube under each signed Order.
“Third Party” means any entity other than Opennube or the Client (or their respective Affiliates), and “Third-Party Software” means any software not developed or owned by Opennube or its Affiliates but licensed to the Client by Opennube as part of the System.
All references to “Clauses” or “Sections” shall refer to those of this Agreement unless otherwise stated.
All consents, requests, notices, or approvals under this Agreement shall be made in writing to be valid between the Parties.
2. Application of this Agreement
All Services supplied by Opennube to the Client are governed by this Agreement.
Any Order issued by the Client must be consistent with this Agreement. In the event of any conflict between an Order and this Agreement, the provisions of this Agreement shall prevail, even if:
(i) the Order is more recent, or
(ii) the Order is accepted by Opennube.
Each delivery or service will be defined by a written Order signed by both Parties.
These General Terms apply automatically to all Orders and related Annexes, regardless of whether the Agreement is expressly referenced.
Opennube shall confirm receipt of an Order within five (5) business days, indicating acceptance or rejection. If no response is provided within this period, the Order shall be deemed accepted under this Agreement’s terms.
Acceptance or rejection will be communicated via email to the Client.
If Opennube proceeds to fulfill an Order not formally accepted, such Order shall be deemed accepted under this Agreement.
3. Force Majeure
Neither Party shall be liable for failure or delay in performance caused by events beyond its reasonable control (“Force Majeure”), as defined under applicable law.
In such cases, the affected Party shall notify the other Party in writing as soon as possible, providing details of the cause.
Obligations directly affected shall be suspended during such period.
If suspension exceeds ninety (90) days, either Party may propose continuation or termination of the Agreement or affected Order without liability.
In case of termination due to Force Majeure, the Client shall pay Opennube for:
(a) Services delivered or available for delivery up to termination;
(b) Work in progress or third-party commitments; and
(c) Reasonable costs incurred due to termination.
4. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the Republic of Argentina, excluding its conflict-of-law rules.
The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
Each Party irrevocably submits to the exclusive jurisdiction of the competent courts of Orlando, United State of America.
Either Party may seek injunctive relief in any competent jurisdiction if necessary.
5. Notices
All notices shall be in writing and sent by mail or email to the addresses stated in this Agreement, or as otherwise updated in writing by either Party.
6. Entire Agreement
This Agreement constitutes the entire understanding between the Parties, superseding all prior proposals, representations, or agreements related to its subject matter.
If any provision is deemed invalid, the remaining provisions shall remain in full force and effect. The Parties shall negotiate in good faith to replace any invalid clause with a valid one achieving the intended purpose.
7. Waiver
Failure by either Party to enforce any provision shall not constitute a waiver of that provision or any subsequent breach.
8. Publicity
Opennube may reference the Client’s name in marketing materials, but not the Client’s customers.
Opennube shall not publish any work performed for the Client without prior written consent.
9. Assignment
Neither Party may assign or transfer its rights or obligations under this Agreement without prior written consent.
Opennube may subcontract portions of the Services with the Client’s written approval.
Each Party remains solely responsible for its personnel and labor obligations; no employment relationship shall exist between the personnel of Opennube and the Client.
ANNEX I – CONFIDENTIALITY AGREEMENT (NDA)
1. Agreement between the Parties
Both Parties agree as follows:
“Confidential Information” means any information (except that which is trivial, obvious, or cannot reasonably be considered confidential), whether commercial, technical, or otherwise related to the business or products of either Party (or any third party that has provided such information under confidentiality conditions), and in any form, including, without limitation, designs, documents, and computer-readable electronic media.
Each Party undertakes to:
Keep all Confidential Information obtained from the other Party strictly confidential.
Use such information exclusively for the purposes of this Agreement.
Not disclose or use the Confidential Information, in whole or in part, directly or indirectly, for any purpose other than as permitted herein, nor allow any third party to use it without the other Party’s prior written consent.
Both Parties shall take all necessary precautions to safeguard the other Party’s Confidential Information, including at least the same degree of care that each uses to protect its own Confidential Information, and the specific measures established in this Annex.
Each Party shall be liable to the other for any misuse or disclosure of Confidential Information arising from its failure to comply with this Agreement.
2. Exceptions
The obligations of confidentiality shall not apply to information that:
(i) Becomes public knowledge through no fault or negligence of either Party, its agents, or employees;
(ii) Was already lawfully in the recipient’s possession, free of restrictions, prior to disclosure under this Agreement;
(iii) Is subsequently obtained from a third party lawfully and without confidentiality obligations;
(iv) Is developed independently by the recipient’s personnel without access to or use of Confidential Information; or
(v) Is released from confidentiality obligations by prior written consent of the disclosing Party.
Nothing in this Agreement shall prevent a Party from disclosing Confidential Information to the extent required by law or competent authority.
To rely on any exception above, the Party invoking it must provide documentary or tangible evidence demonstrating that the exception applies.
3. Confidentiality Measures
Each Party shall keep all Confidential Information received from the other Party separate from its own documents and records, including any documentation created subsequently.
Neither Party shall copy, use, or store the other Party’s Confidential Information on any externally accessible computer system or data-retrieval system, nor transmit it by any means outside its usual business premises, except as strictly necessary for the purposes authorized in this Agreement.
Access to Confidential Information shall be granted only to employees who have a legitimate need to know it for the purposes of this Agreement and who are informed of its confidential nature and corresponding obligations.
Upon termination or expiration of this Agreement—or upon request at any time—each Party shall return all documents and materials containing the other Party’s Confidential Information and delete all electronically stored data incorporating such information, certifying in writing that it has done so within the same period.
4. Limitations
Nothing in this Agreement shall be construed as granting any rights, licenses, or interests in any product, intellectual property, or Confidential Information of either Party (or any third party).
Confidential Information is provided in good faith, without any express or implied warranty, statutory or otherwise, as to its accuracy or completeness.
5. Term and Duration
This Confidentiality Agreement applies to any Confidential Information exchanged between the Parties from the date of execution of the Master Services Agreement (or from the date on which discussions leading to it began, whichever is earlier) and remains effective for the duration of the Agreement.
The confidentiality obligations herein shall continue to apply for no less than five (5) years after the termination or expiration of the Agreement.
The expiration of this period shall not be construed as granting any license to use the Confidential Information, trade secrets, or know-how disclosed under this Agreement.
ANNEX II – SPECIFIC TERMS AND CONDITIONS FOR MANAGED PROFESSIONAL SERVICES
(Including equipment, software, and systems)
The terms and expressions used in this Annex have the meanings defined below.
For Managed Professional Services only, in case of conflict between this Annex and any other Annex or the main Agreement, this Annex shall prevail.
1. Definitions
“Applicable Law” means all laws, regulations, decrees, orders, rulings, and decisions issued by any competent governmental authority or arbitration body applicable to or binding upon Opennube, its suppliers, or clients.
“Opennube Software” means software owned by Opennube (including cloud-based or on-premise software, images, configurations, templates, and scripts) made available to the Client exclusively for the performance of the Services, excluding any Third-Party Software.
“Opennube Systems” means the platforms, management consoles, portals, dashboards, APIs, and other systems operated by Opennube to execute, monitor, or manage the Services.
“Opennube Equipment” means any hardware, appliance, device, sensor, gateway, server, or other equipment owned or supplied by Opennube (or its third-party vendors) used in connection with the provision of Services.
“Client Data” means any content or data originating from, provided by, or transmitted through the Client or its third-party providers, including, without limitation:
(i) any patent, trademark, copyright, or other intellectual property contained therein;
(ii) any confidential information of the Client; and
(iii) any personal data or information capable of identifying an individual.
“Client Infrastructure” means any equipment, software, or network under the Client’s control (other than Opennube Equipment, Software, or Systems) with which the Services must interact or integrate.
“Third-Party Software” means software provided by or owned by a third party (other than Opennube or the Client) used in connection with the provision of the Services.
“Services” or “Managed Professional Services” means Opennube’s professional services, which may include, as applicable, the design, supply, installation, configuration, operation, monitoring, administration, support, and maintenance of Opennube Equipment, Software, and/or Systems (and, where applicable, of licensed third-party components) for the Client’s internal operation, as described in related purchase requests, proposals, and invoices.
“AUP” means the Acceptable Use Policy applicable to the Services, where relevant.
“Deliverables” means technical and functional documentation, operation manuals, reports, configuration matrices, and other materials that Opennube provides to the Client in connection with the Services.
2. Provision of Services
2.1 Scope.
Opennube shall provide the Services to the Client in accordance with this Annex and Applicable Law. Unless otherwise agreed in writing, no ownership of Opennube Equipment, Software, or Systems is transferred to the Client.
2.2 Availability and Efforts.
Opennube shall make commercially reasonable efforts to ensure the performance and continuity of the Services in line with agreed service levels (see Appendix B, if applicable). Opennube does not guarantee the availability of Internet-based third-party services or networks outside its control.
2.3 Suspension.
Opennube may, at its sole discretion, immediately suspend or restrict any portion of the Services when reasonably deemed necessary to prevent material damage to Opennube’s Equipment/Systems or third parties, or in the event of unlawful use or breach of the AUP. Opennube shall notify the Client and provide an opportunity to remedy the issue when practicable.
2.4 Access and Site Conditions.
When on-site installation is required, the Client shall provide access, power, physical space, climate control, connectivity, and reasonable security measures according to Opennube’s technical specifications.
2.5 Ownership and Use of Equipment.
Unless expressly sold, Opennube Equipment is provided for non-exclusive use during the Service term, remains Opennube’s property at all times, and must be returned upon termination (see Clause 9). The Client may not open, modify, relocate, or tamper with such equipment without Opennube’s prior written authorization.
3. Client Use and Obligations
3.1 Authorized Use.
The Client is entitled to receive the Services and, where applicable, to use Opennube’s Software/Systems/Equipment solely for its internal operations and during the term of the Agreement. Resale, subleasing, assignment, or any use for providing services to third parties is prohibited unless expressly authorized in writing by Opennube.
3.2 Restrictions.
The Client shall not:
(a) Use the Services in violation of Applicable Law or the AUP;
(b) Interfere with the performance of the Services or with Opennube’s ability to provide them;
(c) Circumvent, breach, or attempt unauthorized access to Opennube Software/Systems;
(d) Copy, decompile, reverse-engineer, or create derivative works of Opennube Software; or
(e) Lease, pledge, or transfer usage rights to Opennube Software/Systems/Equipment.
3.3 Cooperation and Information.
The Client shall:
(i) Provide timely information, access, and authorizations reasonably required by Opennube;
(ii) Maintain its infrastructure in good condition and interoperable with the Services;
(iii) Safeguard Opennube Equipment under its custody and bear any loss or damage attributable to the Client or its agents (excluding normal wear and tear).
3.4 Client Data.
The Client represents and warrants that it has all necessary rights and authority over the Client Data and that its use by Opennube in connection with the Services will not infringe any third-party rights or Applicable Law. The Client shall be responsible for decisions or actions taken by itself or third parties based on the Deliverables or processed data.
3.5 Indemnity.
The Client shall indemnify and hold harmless Opennube from any claims arising from:
(i) Misuse or unauthorized use of the Services;
(ii) Breach of the AUP;
(iii) Client-provided specifications used to deliver the Services;
(iv) Infringement of third-party intellectual property rights attributable to the Client; or
(v) The Client Data.
4. Intellectual Property Rights
4.1 Opennube.
All intellectual property rights in the Services, Opennube Software, Opennube Systems, Opennube Equipment, and related configurations or developments remain exclusively owned by Opennube and/or its licensors. The Client shall not claim any ownership over them.
4.2 Client.
All intellectual property rights in the Client’s Infrastructure remain the property of the Client.
4.3 Deliverables.
Unless otherwise agreed, Deliverables (documentation and reports created specifically for the Client) are licensed for internal use, conditional upon full payment of applicable fees. Methodologies, tools, know-how, templates, reusable software, and configurations of Opennube are not assigned.
4.4 Joint Developments.
If joint developments are undertaken, ownership and licensing terms shall be agreed in writing. Absent such agreement, rights to underlying tools and platforms shall remain with Opennube.
5. Warranties
5.1 Client Warranties.
The Client represents and warrants that it:
(i) Has authority to permit the use of its Infrastructure and Client Data for the Services; and
(ii) Such use does not infringe Applicable Law or third-party rights.
5.2 Opennube Warranties.
Opennube warrants that it will perform the Services in a professional manner and in accordance with good industry practices, and that its Software/Systems/Equipment will conform to applicable specifications.
As the sole remedy for breach of this warranty, Opennube will either:
(i) Use commercially reasonable efforts to correct the non-conformity; or
(ii) If the defect materially prevents use and cannot be remedied within a reasonable period, issue a service credit up to the amount of the affected monthly charge.
5.3 Exclusions.
OPENNUBE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM USAGE OR COURSE OF DEALING. OPENNUBE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
6. Compliance and Data Processing
6.1 Processing on Behalf of the Client.
With respect to Client Data, Opennube acts solely on behalf of the Client, following the Client’s written instructions and the terms of this Annex. When required by law or regulation, the Parties shall execute an applicable Data Processing Agreement (DPA).
6.2 Data Transfers.
The Client acknowledges that, when necessary for Service delivery, Client Data may be accessed, processed, or transferred by Opennube, its affiliates, and/or its vendors, including to locations outside United State of America (such as the Canada or Argentina).
The Client agrees to hold Opennube harmless from any claims arising from data transfers performed in accordance with this Annex or in compliance with Applicable Law by Opennube or its providers.
7. Pricing and Payments
7.1 Charges.
The Client shall pay for the Services as set out in Appendix C. Unless stated otherwise, monthly recurring charges (MRC) are payable in advance and non-refundable. Variable or usage-based charges shall be invoiced in arrears.
7.2 Taxes.
Prices exclude any taxes, fees, or duties (other than taxes on Opennube’s income).
7.3 Invoicing.
Invoices shall be issued according to the billing details provided by the Client in the Purchase Order and/or Appendix C.
7.4 Late Payments.
If payment is not received within thirty (30) days of the invoice date, Opennube may
(i) notify its intention to suspend Services, granting an additional 30-day grace period, and
(ii) if payment remains outstanding, suspend or terminate the Services without prejudice to other rights or remedies.
7.5 Currency.
Payments shall be made in U.S. dollars (USD).
7.6 Price Adjustments.
Opennube may revise prices once per twelve-month period with thirty (30) days’ notice and may pass through supplier cost variations at any time with prior written notice.
8. Term and Termination
8.1 Term.
This Annex becomes effective on the Effective Date stated in the Purchase Order and remains in force for the period specified therein. Unless otherwise indicated, it will automatically renew for successive equal terms unless either Party gives at least thirty (30) days’ written notice of non-renewal.
8.2 Termination without Cause.
Either Party may terminate this Annex without cause upon at least thirty (30) days’ written notice. No indemnity shall be owed; amounts accrued up to the effective termination date must be paid.
8.3 Termination for Cause.
Either Party may terminate this Annex:
(i) for material breach not cured within thirty (30) days after notice (or compensated if not curable);
(ii) immediately for infringement of intellectual-property, software-license, or confidentiality obligations; or
(iii) immediately upon bankruptcy, insolvency, or liquidation of the other Party.
9. Consequences of Termination
9.1 Confidential Information.
Upon termination or expiration, each Party shall within ten (10) business days return all documents and materials containing the other Party’s Confidential Information and delete any remaining electronic copies, certifying completion in writing.
9.2 Cessation and Return.
The Client shall immediately cease using the Services, Software, Systems, and Equipment, allow retrieval or arrange return of Opennube-provided Equipment within ten (10) business days (in its existing condition, normal wear excluded), and pay all amounts accrued up to the termination date.
9.3 Survival.
The following provisions shall survive termination:
Clause 3 (Use and Obligations),
Clause 4 (Intellectual Property),
Clause 5.3 (Exclusions),
Clause 6 (Compliance),
Clause 7 (Payments — with respect to outstanding amounts), and
Clause 9 (Consequences of Termination).
APPENDIX A – ACCEPTABLE USE POLICY (AUP) FOR CLOUD SERVICES
The Client (and its authorized users) shall comply with this AUP. The Client is responsible for ensuring that Cloud Services are not used for the following purposes:
Gaining or attempting unauthorized access to any system not owned by the Client.
Making unauthorized changes to systems belonging to Opennube, its suppliers, or other clients.
Transmitting or storing material that infringes intellectual-property rights or Applicable Law.
Violating third-party privacy rights, collecting personal data without authorization.
Sending spam or any unlawful or unsolicited communications.
Transmitting or storing material that is illegal, obscene, harassing, defamatory, abusive, hateful, or inciting unlawful acts.
Engaging in fraudulent or malicious activities.
Transmitting viruses or malicious code, or performing actions that expose Opennube to unreasonable regulatory risk.
The Client shall not:
Reverse-engineer, decompile, or disassemble Cloud Software or Third-Party Software.
Circumvent security controls or configure systems to allow insecure or unauthorized access.
Monitor or “sniff” network traffic on shared networks.
Access sensitive or protected information such as password files.
Use software intended to break encryption or passwords.
The Client is responsible for the security of its accounts:
Maintain and provide Opennube with a list of authorized users.
Notify Opennube in writing when a user’s access should be revoked (minimum ten (10) days in advance).
Remote-access accounts are personal, non-transferable, and may not be shared.
Violations and Remedies
Opennube may investigate any suspected violation and cooperate with civil or criminal authorities.
Upon verified breach of this AUP, Opennube may suspend or terminate Cloud Services immediately and seek legal remedies for resulting damages.
Reports of violations should be sent to opennube@opennube.com.
Opennube reserves the right to modify this AUP at any time. Continued use after notification constitutes acceptance of the updated AUP.
APPENDIX B – TECHNICAL SPECIFICATIONS AND SERVICE LEVELS (Reference Framework)
Nature of the document: this appendix serves as a framework. Specific technical features and SLAs for each project will appear in the corresponding Commercial Proposal, which prevails in case of discrepancy.
General Scope: design & planning; supply of equipment/software/systems; installation (on-site or remote); operation, monitoring & managed administration; support and maintenance; change management; documentation & basic training.
Architecture & Inventory: topology diagrams, inventory lists, interoperability and Client-infrastructure prerequisites are defined in the Proposal.
Service Levels (SLA):
Severity S1 (Critical) – total outage;
S2 (High) – major degradation;
S3 (Medium) – limited impact;
S4 (Low/Inquiry).
Response, containment, and restoration targets, coverage hours (5×8, 7×24), channels (email/portal/phone) and reporting frequency will be defined in the Proposal.
Maintenance & Changes: maintenance windows (48–72 h notice), change control procedures (RFC, risk assessment, back-out plan).
Security & Compliance: minimal privilege access, audit logs, encryption in transit/at rest, backup policies, and data-processing agreements as required.
Availability & Capacity: target availability (e.g., 99.5 % monthly) and monitored thresholds (CPU/RAM/IO/Bandwidth) set per project.
Monitoring & Observability: metrics, logs, synthetic tests, alerts, dashboards, and periodic reports.
Continuity & Disaster Recovery: RPO/RTO objectives and testing frequency defined per project.
Typical Deliverables: implementation plan, configuration matrix, operation manual, test plan & acceptance record, monthly operational report with KPIs.
Assumptions & Exclusions: availability of Client personnel, access data, site conditions, civil works excluded, third-party connectivity out of scope.
Roles & Responsibilities: a RACI matrix will be attached per process (operation, changes, incidents, security, backups, DR).
APPENDIX C – COMMERCIAL AND ECONOMIC CONDITIONS (Reference Framework)
Charge Structure:
Non-Recurring Charges (NRC): implementation, onboarding, migration, training, commissioning.
Monthly Recurring Charges (MRC): managed operation/support, subscription licenses, equipment rental.
Variable Charges: excess usage, extra hours, out-of-scope interventions, uncovered replacements.
Travel Expenses: per Opennube’s travel policy.
Billing and Payment:
Currency: USD.
Billing: MRC in advance; NRC/variables in arrears.
Payment term: as per Clause 7 of Annex II (or as specified in the Proposal).
Recurring charges are non-refundable once the period has started.
Included Limits and Overages:
Hour packages, device counts, or data volumes will be detailed in the Proposal; overages billed at listed unit rates.
Equipment and Licensing Prices:
Sales: unit prices, manufacturer warranties, delivery conditions.
Rental/Loan: monthly fee, return conditions, charges for loss/damage.
Third-Party Licenses/Subscriptions: periods, renewals, and price adjustments passed through.
Adjustments and Reviews: annual review or as per Annex II, with notice; supplier cost and exchange-rate variations passed through.
Milestones and Acceptance: milestone plan and acceptance criteria in Proposal; tacit acceptance if no reasonable objection within defined period.
Off-Hours and Emergency Services: surcharges for after-hours or holiday/weekend work as detailed in Proposal.
Early Termination: if NRC discounts or commitments apply, the Proposal may include early-termination fees. Equipment must be returned per Annex II; loss/damage under Client’s responsibility.
Proposal Validity and Formalization: offer validity (e.g., 30 days); acceptance via Purchase Order and/or signature of Proposal/Agreement; billing details to include legal name, tax ID, address, and billing email.
Economic Precedence Order: unless otherwise agreed:
Agreement / Annex II → Project Commercial Proposal → Purchase Order.