Schedule A

General Terms and Conditions to Master Service Agreement

 

Key Definitions – Each definition used in this Agreement (defined below) will apply to both the singular and plural forms of such term.  Any capitalized terms used in this Agreement that are not defined in this section will have the meaning set forth for such term in other parts of the Agreement. Any capitalized terms used in a Service Agreement that are not used elsewhere will only be applicable to that Service Agreement. If a capitalized term is not defined in the Agreement, it will hold its ordinary English language meaning in the context in which it is used.  Capitalized terms that are stated in ALL CAPS will have the same meaning as when only the first letter of each word in the term is capitalized.

“Agreement”: collectively, the MSA Cover Page, these General Terms, all Additional Terms, all MSA Schedules, all Service Agreements, and all Policies.

“Services”: all services provided by us to you under this Agreement pursuant to a Service Agreement including, without limitation, any Third-Party Services that we facilitate for you or that we sell or re-sell to you as mutually agreed upon in writing.

“Customer Environment”: the Customer’s entire computing environment in whatever shape or form that the MSP interacts with and/or relies on in the provision of Services to Customer.  Customer Environment also includes all devices, peripherals and/or computer processing units, including mobile devices (such as notebook computers, smart phones and tablet computers) that are connected to the Customer Environment (collectively, “Devices”), regardless of whether such Devices are owned, leased or otherwise controlled by you.  All Third-Party Products, Third-Party Software, and Devices in the Customer Environment that MSP expressly provides Services for in a Service Agreement may be referred to as “Equipment”.

"Effective Date": For the Agreement, the effective date identified on the MSA Cover Page of the Agreement.  For a SOW, the effective date identified on each SOW applicable only to such SOW.  For a Service Case, the date of mutual acceptance as set forth in MSP’s systems. For Policies, the effective date listed on each such Policy applicable only to such Policy.

Scope; Services. We agree to provide you with Services in accordance with and subject to this Agreement.  Services will be provided to you under this Agreement through: (i) one or more statements of work setting forth the specific services to be provided by us to you (each, a “SOW”); (ii) one or more service cases generated in our systems (each, a “Service Case”); and/or (ii) through additional MSA Schedules related to us performing services for you (SOWs, Service Cases, and services MSA Schedules may collectively be referred to as the “Service Agreements”).  All hardware, software licenses, peripherals, or accessories purchased through or provided by MSP (“Third-Party Products”), either in support of the Services or independent from the Services, will be provided in the applicable Service Case and/or as part of the applicable Service Agreement(s).  Further, these General Terms govern each Service Agreement issued and/or entered into hereunder.  Each Service Agreement may contain additional and/or revised terms and conditions applicable to that specific agreement, and the Parties agree to abide by such additional and/or revised terms and conditions (“Additional Terms”).  Each Service Case shall become effective between the Parties upon Customer approving such Service Case in accordance with the method required by MSP, and each SOW shall become effective between the Parties only upon execution by MSP’s Authorized Personnel and Customer’s Authorized Personnel (collectively, “Authorized Contacts”). In the event of any conflict between Additional Terms contained in a Service Agreement and these General Terms, the conflicting provisions of the Service Agreement shall control and govern.

Third Party Services. Customer acknowledges and agrees that providing the Services may require services that are to be performed, in whole or in part, by companies and individuals other than us (“Third-Party Providers”) including, without limitation, services performed by your staff; independent contractors; internet service providers; data processing and hosting services; help desk services; malware detection services; domain registration services; data backup/recovery services; voice/VOIP service providers; cloud service providers; and cybersecurity service providers (collectively, “Third-Party Services”). Additionally, various software may be procured for use in performing the Services from Third-Party Providers (“Third-Party Software”). Not all Third Party Services or Third-Party Software will be expressly identified as being provided by a Third Party Provider, and at all times we reserve the right to utilize the services of any Third Party Provider or to change Third Party Providers in our sole discretion as long as the change does not materially diminish the Services. We will use commercially reasonable efforts to list Third-Party Providers on the Schedule of Third-Party Providers and attach as an Attachment to this Agreement.  However, due to the dynamic nature of providing Services, not all Third-Party Providers may be listed.  Any such failure to list a Third-Party Provider does not change their designation as a Third-Party Provider.

Terms for Third-Party Services.  Customer acknowledges and agrees that Third-Party Services and Third-Party Software are provided by Third-Party Providers and not by MSP.  While MSP may facilitate Third-Party Providers to provide Third-Party Services and Third-Party Software as part of our Services to you, we do not have any ownership or control over such Third-Party Providers, Third-Party Services, Third-Party Software.  All Third-Party Services and Third-Party Software are governed by separate terms and conditions and/or end-user license agreements (collectively, “Third-Party Agreements”).  Portions of the Services may require you to affirmatively accept Third-Party Agreements of one or more Third-Party Providers.  If a Third-Party Agreement is listed in an Attachment or within a Service Agreement, accepting the Attachment and/or Service Agreement constitutes your irrevocable acceptance of the listed Third-Party Agreements.  If the acceptance of a Third-Party Agreement is required in order to provide Services to you, then you hereby grant us an irrevocable power of attorney and affirmative consent to accept the Third-Party Agreement on your behalf.  You agree to be bound by the terms of such Third-Party Agreements, release us from any and all liability from such Third-Party Agreements, and seek enforcement of their terms solely with the applicable Third-Party Provider. If, while providing the Services, we are required to comply with a Third-Party Agreement and the Third-Party Agreement is modified or amended, we reserve the right to modify or amend any applicable SOW with you to ensure our continued compliance with the terms of the Third-Party Agreement.

Third-Party Products.  Third-Party Products purchased from MSP are generally nonrefundable once the Third-Party Product is received from a Third-Party Provider.  If you desire to request a refund for any Third-Party Products, the Third-Party Provider’s policies apply. We do not guarantee that Third-Party Products will be returnable, exchangeable, or that you will not have to pay re-stocking fees.  You will be responsible for the payment of all re-stocking or return-related fees charged by the third party provider or reseller. We will use commercially reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third-Party Products to you, but will have no liability whatsoever for the quality, functionality, or operability of any Third-Party Products, and we will not be held liable as an insurer or guarantor of the performance, uptime, or usefulness of any Third-Party Products.  AS BETWEEN YOU AND MSP, All Third-Party Products are pro­vided “as is” and without any warranty, express or implied, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Business Hours.  Unless agreed to otherwise in a Service Agreement, we will provide Services during Business Hours, regardless of whether we are performing Services at your location(s) or at our location.  Any Services required outside of Business Hours may be subject to additional fees.

Response Times. We will make commercially reasonable efforts to meet response times set forth in an applicable Service Agreement. In no event will we be responsible for delays in our response or our provision of Services during (i) Scheduled Downtime, (ii) periods of delay caused by Customer-Side Downtime (defined below), Vendor-Side Downtime (defined below), (iii) those periods of time covered under the Transition Exception (defined below),  or (iv) periods in which we are required to suspend the Services to protect the security or integrity of the Customer Environment or our equipment or network, or (v) delays caused by Force Majeure.

Scheduled Downtime.  For the purposes of this Agreement, “Scheduled Downtime” means those hours during which we may perform scheduled maintenance or adjustments to the Environment.  We will use commercially reasonable efforts to provide you with at least five (5) days prior notice of any Scheduled Downtime.

Customer-Side Downtime.  We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by your actions or omissions (“Customer-Side Downtime”). Customer-Side Downtime includes, but is not limited to, any period of time during which we require your participation or we require information, directions, or authorization from you but cannot reach your Authorized Contacts.

Vendor-Side Downtime.  We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by Third-Party Providers or “upstream” service or product vendors.

Transition Exception.  You acknowledge and agree that for the first forty-five (45) days following the commencement date of any Service, as well as any period of time during which we are performing off-boarding-related services (e.g., assisting you in the transition of the Services to another provider, terminating a service, etc.), the response time commitments provided to you will not apply to us, it being understood that there may be unanticipated downtime or delays related to those activities (the “Transition Exception”).

Change Procedure.  If Customer wishes to implement changes in any Services during the term of an applicable Service Case or Service Agreement, Customer must request such changes in writing and deliver the request to MSP.  For requested changes to a Service Case, if MSP accepts the changes then a new Service Case will be generated and, upon Customer’s approval of the updated Service Case, will replace the prior Service Case.  If Customer requests changes to a SOW, MSP shall review such requested changes and, if MSP is willing to undertake such changes, MSP then will issue an amendment to the applicable SOW covering the requested changes.  No changes in any SOW will be effective until such amendment is executed by authorized representatives of both parties hereto.  Customer understands and agrees that additional fees and costs may apply to any requested changes to Services.

Modifications. MSP reserves the right to modify or replace any Equipment in its network or in equipment used to deliver any Service over its network, provided that such modifications or replacements do not have a material effect on the MSP's obligations under this Agreement and its provision of the Services. If such changes will have a material effect, the MSP shall notify the Customer and the parties shall follow the Change Procedure outlined in this Agreement.

Term.  This Agreement begins on the Effective Date and continues in effect for twelve (12) months after the termination or expiration of the last Service Agreement remaining in effect.  Service Agreements are added to this Agreement on the effective date of the respective Service Agreement.  Each Service Agreement will have its own term and will be terminated only as provided in this Agreement unless otherwise expressly stated in the Service Agreement.  The termination of Services under one Service Agreement shall not, by itself, cause the termination of (or otherwise impact) this Agreement or the status or progress of any other Services between the parties. Service Agreements may provide for auto-renewal; please review each applicable Service Agreement carefully.

Termination Without Cause.  Unless otherwise agreed by the parties in writing or otherwise permitted under this Agreement, no party will terminate this Agreement without cause if, on the date of termination, Services are in progress.  In addition, no party will terminate a Service or applicable Service Agreement without cause prior to the Service’s or Service Agreement’s natural (i.e., contracted) expiration date. If you terminate the Services without cause and without MSP’s consent prior to the Services’ contracted expiration date, then you will be responsible for paying the termination fee described in the “Termination for Cause” section, below. 

Termination For Cause.  In the event that one party (a “Defaulting Party”) commits a material breach under a SOW or under this Agreement, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately this Agreement or the relevant SOW (a “For Cause” termination) provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within twenty (20) days (ten (10) days for non-payment by Customer) following receipt of written notice of breach from the non-Defaulting Party.  If MSP terminates the Services, this Agreement, or any Service Agreement For Cause, or if you terminate any Services or a Service Agreement without cause prior to the Services’ contracted expiration date, then MSP shall be entitled to receive, and you hereby agree to pay to us, all amounts that would have been paid to MSP had the Services, this Agreement, or Service Agreement (as applicable) remained in full effect, calculated using the fees and costs in effect as of the date of termination (“Termination Fee”).  If you terminate Services, this Agreement, or a Service Agreement For Cause, then you will be responsible for paying only for those Services that were delivered properly and accepted by you up to the effective date of termination.  No breach by any Third-Party Provider can give rise to a For Cause termination under this Agreement including any Service Agreement.


Customer Activity As A Basis for Termination.  In the event that you or any of your staff, personnel, contractors, or representatives engages in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide the Services to you, then in addition to MSP’s other rights under this Agreement, MSP will have the right upon providing you with ten (10) days prior written notice, to terminate the Services, this Agreement, or the applicable Service Agreement For Cause.

Termination of the Agreement for Convenience.  If there are no active Service Agreements or if the Parties otherwise mutually agree, then this Agreement may be terminated for convenience by the Parties.

Nonpayment.  Any fees and expense reimbursements (“Compensation”) due under this Agreement that remain unpaid for more than ten (10) days after the date on the applicable invoice will be subject to interest on the unpaid Compensation until and including the date payment is received at the maximum allowable rate of interest permitted by applicable law.  We reserve the right, but not the obligation, to suspend part or all of the Services without prior notice to you in the event that any portion of Compensation is not timely received by us until such time that all outstanding fees and expense reimbursements are paid (“Suspension Dates”). MSP will not have any obligation to perform any Services during the Suspension Dates. Monthly or recurring Compensation (if applicable) shall continue to accrue during any Suspension Dates where the suspension is due to nonpayment. Notwithstanding the foregoing, if you reasonably dispute fees with us within thirty (30) days of receipt of an invoice, we will work with you for a period of ten (10) days to resolve such dispute before suspending Services.

Return of Equipment. Upon the termination of a Service Agreement, you will be required to return all Equipment that was provided to you under that SOW.  If any of the Equipment is missing or if any of those items is broken or damaged (normal wear and tear excepted), we will have the right to invoice you for, and you hereby agree to promptly pay, the full replacement value of any and all missing or damaged items. Certain Services may require the installation of software agents in the Customer Environment (“Software Agents”).  You agree not to remove, disable, circumvent, or otherwise disrupt any Software Agents unless we explicitly direct you to do so in writing.

Transition; Deletion of Data.  In the event that you request our assistance to transition Services to another provider, we will provide such assistance if (i) all fees due and owing to us are paid to us in full prior to MSP providing its assistance to you, and (ii) you agree to pay our then-current hourly rate for such assistance with up-front amounts to be paid to us as we may require in accordance with a new Service Agreement. It is understood and agreed that the retrieval and provision of passwords, the retrieval and provision of Customer data, log files, administrative server information, or conversion of data are transition services and are subject to the preceding requirements. Unless otherwise expressly stated in a Service Agreement, we will have no obligation to store or maintain any Customer data in our possession following the termination of the applicable Services, this Agreement and/or an applicable Service Agreement.

Fees and Estimates.  Fees associated with the Services performed by the MSP under this Agreement are included in the applicable Services Agreements. If no fees are included in those items, then the MSP’s standard fees apply which MSP will provide to you (“Standard Pricing”). If the MSP provides an estimate of fees for any Services requested by the Customer in a Service Agreement, the Customer understands that the final fees associated with the Services could be more than the estimated fees, and the Customer shall pay all final fees associated with the Services.  MSP may change its Standard Pricing at any time without notice to the Customer.  MSP may require that the Customer provide a deposit prior to performing Services in an amount set by MSP. 

Pass-Through Expenses.  Unless the Parties agree otherwise in an applicable Service Agreement, the Customer shall pay the MSP’s reasonable out-of-pocket expenses, including travel expenses, lodging, meals, or other similar expenses, which the MSP may incur during its performance under an Order (the “Pass-Through Expenses”).  The MSP will make reasonable efforts to notify the Customer about any Pass-Through Expenses prior to incurring them.  The MSP may require payment of Pass-Through Expenses prior to the MSP incurring such expenses on the Customer’s behalf.  If the Customer refuses to pre-pay any Pass-Through Expenses requested by the MSP, then the Customer acknowledges that such refusal may affect the MSP’s ability to perform Services under this Agreement and the Customer shall not hold the MSP responsible for its limited performance or non-performance under such circumstances.

Invoicing and Payment. Unless otherwise provided in an applicable Order, the MSP shall issue an invoice to the Customer for payment of any fees and Pass-Through Expenses related to Services performed by the MSP. The Customer shall pay the total invoiced amount within the time period set forth on such invoice.

Taxes.  The fees provided in a Service Agreement may not include any applicable sales, use, excise, or services taxes (“Taxes”).  If Taxes are assessed on any Services, then the Customer shall pay those taxes directly to the taxing authority or shall reimburse the MSP for the MSP’s payment of those Taxes to the taxing authority.

Full Right and Title; Compliance with Law.  Customer hereby warrants and represents that it has title to or license or rights to use or modify and has license or rights to permit MSP to use, access or modify every part of the Customer Environment, including Devices, except parts provided solely by MSP.  Further, Customer represents and warrants that it has all right to enter into this Agreement and to perform its obligations, hereunder.  Customer shall maintain all rights necessary for MSP to perform Services, including, but not limited to, maintaining all Third-Party Agreements. Customer further represents and warrants that its use of the Customer Environment will comply with all applicable law and will not violate the rights of any third party.  Customer shall indemnify MSP and shall hold MSP harmless against any loss, claim, damage or expense, including reasonable attorneys' fees, resulting from any action brought or claim made by any third party against MSP relating to the representations and warranties stated above.

Access and Cooperation.  You hereby grant to us and our designated Third-Party Providers the right to monitor, diagnose, communicate with, retrieve information from, and otherwise access the Customer Environment solely as necessary to enable us and/or our Third-Party Providers, as applicable, to provide the Services. Proper and safe environmental conditions must be provided and assured by you at all times. MSP shall not be required to engage in any activity or provide any Services under conditions that pose or may pose a safety or health concern to any personnel, or that would require extraordinary or non-industry standard efforts to achieve.  If such a circumstance should arise, MSP will provide you with written notice outlining the conditions which must be modified.  If you do not make the requested modifications, MSP will be relieved from performing Services.

Minimum Requirements.  In order to be eligible for certain Services, Customer’s Environment may be required to meet certain minimum requirements, which will be set forth in the applicable Service Case or Service Agreement(s) (the “Minimum Requirements”).  If Customer does not meet the Minimum Requirements, MSP shall have no obligation to perform the Services until Customer makes all necessary upgrades, adjustments, or actions so that Customer’s Environment meets the Minimum Requirements.  Notwithstanding, Customer may engage MSP to perform the necessary upgrades, adjustments, or other actions required to meet the Minimum Requirements set forth in the applicable Service Case or Service Agreement(s).  Unless otherwise set forth, such services by MSP are not considered part of the Services and shall be billed at MSP’s then-current time and material rates.

Customer Environment. You acknowledge, understand, and agree that in order for MSP to perform Services, the Customer Environment must not be changed unless planned for and agreed to between you and MSP.  You agree not to modify or move the Customer Environment, unless we mutually agree to such activity. In all situations (including those where we are co-managing a Customer Environment), we will not be responsible for issues arising from changes to the Customer Environment where we did not mutually agree to the changes.

Updates.  Patches and updates to hardware and software (“Updates”) are created and distributed by Third-Party Providers and may be supplied to us from time to time for installation into the Customer Environment. If Updates are provided to you as part of the Services, we will implement and follow the manufacturers’ recommendations for the installation of Updates; however, (i) we do not warrant or guarantee that any Update will perform properly, (ii) we will not be responsible for any downtime or losses arising from or related to the installation, use, or inability to use any Update, (iii) we will not be responsible for the remediation of any part of the Customer Environment that is rendered inoperable or non-functional due to the Update, and (iv) we reserve the right, but not the obligations, to refrain from installing an Update until we have determined, in our reasonable discretion, that the Updates will be compatible with the configuration of the Customer Environment.

Advice. From time to time we may provide you with specific advice related to the Customer Environment and/or enhancing Services (“Advice”).  Advice is provided in good faith on an “as is” basis without warranty of any kind INCLUDING, without limitation, that the Advice would guarantee A specific outcome.  Notwithstanding, declining proposed services set forth in Advice may cause adverse results with Services and you release MSP from any and all liability related to harm caused by such adverse results.

Authorized Personnel.  We will be entitled to rely on any directions or consent provided by Customer Authorized Personnel (as set forth on the MSA Cover Page).  If no Customer Authorized Personnel is/are identified on the MSA Cover Page or if previously identified Customer Authorized Personnel is/are no longer available to us, then your Customer Authorized Personnel will be the person (i) who signed on behalf of you in any Service Agreement, and/or (ii) who is generally designated by you during the course of our relationship to provide us with direction or guidance. We will be entitled to rely upon directions and guidance from your Customer Authorized Personnel until we are affirmatively made aware of a change of status of the Customer Authorized Personnel. We reserve the right, but not the obligation, to delay the Services until we can confirm the Customer Authorized Personnel’s authority within your organization.

Unknown Devices.  Devices that are not expressly included in a Services Agreement (“Unknown Devices”) are expressly excluded from Services. We will not be responsible for the diagnosis or remediation of any issues in the Customer Environment caused by the connection or use of Unknown Devices in the Customer Environment.

Confidential Information.  “Confidential Information” means: (a) any technical information, design, process, procedure, formula, or improvement, as well as any formulae, specifications, designs, business or work processes and procedures, instructions, and other data relating to the development, production of any work done specifically for the Customer; and (b) the business plans and financial information of a Party, regardless of whether such information would be protected at common law. Each Party acknowledges that it and its employees or agents may be exposed to or acquire the Confidential Information of the other Party.  For two (2) years from the date of disclosure of Confidential Information by a Party, the receiving Party shall hold such Confidential Information in confidence and shall not disclose any such Confidential Information to any third party without the express written consent of the disclosing Party, except as permitted in this Agreement.

Non-Confidential Information.  Notwithstanding the preceding provision, Confidential Information does not include: (a) information that at the time of disclosure is, without fault of the recipient, available to the public by publication or otherwise; (b) information that either Party can show was in its possession at the time of disclosure and was not acquired, directly or indirectly, from the other; (c) information received from a third party with the right to transmit same without violation of any secrecy agreement with the other Party; and (d) information that must be disclosed pursuant to court order or by law.

The Agreement and Service Agreements.  No copy of the Agreement, any Service Case or Service Agreement, discussions, negotiations, terms or conditions relating to the Agreement and/or Service Case or Service Agreements, or any other information relating to the Agreement and/or Service Case or Service Agreements may be disclosed to any third party, except by reason of legal, accounting or regulatory requirements, without the prior written consent of the Parties hereto.

Permissible Use.   Notwithstanding the preceding provisions, MSP may publicly refer to Customer, orally and in writing, as a Customer of MSP, and may provide the publicly releasable titles of any Service Case or Service Agreements for press releases, marketing, education, case studies, and/or MSP’s business purposes.

Due Care.  The receiving Party will exercise the same degree of care with respect to the Confidential Information it receives from the disclosing Party as it normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.

Compelled Disclosure.  If a receiving Party is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, and provided that it is not prohibited by law from doing so, the receiving Party will promptly notify the disclosing Party in writing of such requirement so that the receiving Party may seek a protective order or other appropriate remedy and/or waive the disclosing Party’s compliance with the provisions of this Section.  The receiving Party will use its best efforts, as directed by the disclosing Party and at the disclosing Party’s expense, to obtain or assist the receiving Party in obtaining any such protective order.  Failing the entry of a protective order or the receipt of a waiver hereunder, the receiving Party may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that the Recipient has been advised, by written opinion from its counsel (which shall be shared with the disclosing Party), that the receiving Party is legally compelled to disclose.

Additional NDA.  In our provision of the Services, you and we may be required to enter into one or more additional nondisclosure agreements (each an “NDA”) for the protection of a third party’s Confidential Information (such as, for example, a business associate agreement).  In that event, the terms of the NDA will be read in conjunction with the terms of the confidentiality provisions of this Agreement, and the terms that protect confidentiality most stringently shall govern the use and destruction of the relevant Confidential Information.

MSP Works.  The Parties acknowledge and agree that neither Party intends for MSP to develop any intellectual property or works-for-hire under this Agreement, including any Service Agreements, and any deliverable provided by MSP to Customer not constituting modifications to an existing work constitutes an “MSP Work” and is not to be deemed a “work for hire”.  An MSP Work is and shall remain the sole exclusive property of MSP.  Notwithstanding, the following shall not be considered MSP Works: (i) software, including but not limited to any proprietary code, source code and object code, that is subject to third-party license agreements; (ii) those portions of any deliverable including information in the public domain; (iii) those portions of any deliverable constituting generic ideas, concepts, business know-how and work processes, and techniques within the computer design, support and consulting business generally; and (iv) those portions of any deliverable containing general computer consulting knowledge and information that Customer had or acquired during the relationship with MSP that does not include the proprietary business information of MSP.  To the extent any MSP Work is deemed to be a “work for hire” under applicable law, Customer hereby irrevocably assigns, transfers and conveys to MSP all of its right, title and interest in such MSP Work, including but not limited to, all rights of patent, copyright, trade secret, know-how and other proprietary and associated rights in such MSP Work.  Customer agrees to execute such other documents or take such other actions as MSP may reasonably request to perfect MSP’s ownership of any MSP Work of which MSP is granted ownership. MSP grants Customer a non-exclusive, limited license to make copies of any MSP Works during the term of the Agreement only.  Upon expiration or termination of the Agreement, Customer must immediately, without request, return all MSP Works to MSP. 

Modifications to Existing MSP Works.  Any writing or work of authorship, regardless of medium, created or developed by MSP or Customer in the course of performance under this Agreement and relating to existing works owned by MSP constitutes a MSP Work, is not to be deemed a “work for hire,” and does and will remain the sole, exclusive property of MSP. To the extent any MSP Work for any reason is determined not to be owned by MSP, Customer hereby irrevocably assigns, transfers and conveys to MSP all of Customer's right, title, and interest in such MSP Work, including, but not limited to, all rights of patent, copyright, trade secret, know-how, and or other proprietary and associated rights in such MSP Work.  Customer agrees to execute such documents and take such other actions as MSP may reasonably request to perfect MSP’s ownership of any such MSP Work.

General Skills and Knowledge.  Subject to MSP's obligations under the Agreement, MSP may utilize any skills, knowledge or ideas of a general nature acquired during the course of providing the Services, and may independently develop the same or similar deliverables for other Customers based on skills, knowledge or ideas of a general nature acquired during the course of providing the Services, including, without limitation, information publicly known or available or that could reasonably be acquired in a similar work performed for another Customer of MSP.

Customer Materials.  Unless otherwise agreed to by the Parties in writing, Customer shall retain all ownership and/or licensing rights in any documents, equipment, software, data, information (including Confidential Information, as that term is defined herein), or other materials that Customer provides to MSP in the provision of the Services (collectively, the “Customer Materials”).  Notwithstanding, to the extent necessary for MSP to perform its obligations under this Agreement and any applicable Service Agreement, Customer hereby grants to MSP a fully paid, non-exclusive, unrestricted, irrevocable, sub-licensable, worldwide right and license to use, modify, and redistribute the Customer Materials.  In the event that Customer refuses to provide or is unable to provide the foregoing license rights to the Customer Materials, Customer understands that MSP may be unable to perform a portion of or all of the Services adequately and/or fully.  In such instances, Customer agrees that MSP shall have no liability for its inability to perform the Services.

Services Warranty. During the term of this Agreement, except during any Suspension Dates, MSP warrants that the Services will be performed in a professional, workmanlike manner in accordance with this Agreement (“Services Warranty”). Should the Services fail to conform to this Services Warranty, and upon receipt of written notice from the Customer detailing such non-conformance, the MSP shall, at its option, either (1) re-perform the deficient Services at no additional charge, or (2) issue a credit or refund for the fees attributable to the deficient Services (subject to the limitations on liability set forth in this Agreement). The Customer must provide notice of any deficiencies within ten (10) days of the performance of the affected Services.

Exceptions to Services Warranty. The Services Warranty will not apply to any deficiencies resulting from circumstances outside the reasonable control of the MSP or performed by anyone other than MSP, including, but not limited to, the following:  (i) all Equipment of any kind that is owned, leased or otherwise provided by Customer or introduced into the Customer Environment by anyone other than the MSP; (ii) all software of any kind that is owned, leased, or otherwise provided by Customer or introduced into the Customer Environment by anyone other than the MSP; (iii) all Third-Party Services; (iv) all Third-Party Providers; and (v) all Third-Party Software; and (vi) all Third-Party Products. Customer’s failure to provide necessary resources, access or cooperation. The remedies outlined in this section shall be the Client’s sole and exclusive remedies for any breach of this warranty by the Provider.

Expectations from Services. Customer acknowledges, understands, and agrees that despite the MSP’s adherence to the terms and conditions of this Agreement in delivering the Services, the Customer's Environment, networks, software, equipment, and infrastructure remain vulnerable to various harm including, without limitation, to damage, malfunctions, security breaches, cybersecurity breaches, data loss, viral attacks, hacking, cyberattacks, intellectual property theft, and exposure of confidential information (collectively, “Customer Harm”). Additionally, the MSP specifically  not claim or warranty that its Services will guarantee immunity from such problems for the Client's systems, networks, software, equipment, and infrastructure. The Client agrees that the Provider’s liability for any damages, malfunctions, security breaches, or other issues pertaining to the Client’s systems will be limited to circumstances where the Provider has breached a specific term of this Agreement or an Order, and only if such breach is proven to be the direct cause of the issue. The Provider shall not be liable for incidental, consequential, or punitive damages arising from such risks.

Disclaimer of Warranties. THE PROVIDER DOES NOT WARRANT THE UNINTERRUPTED OR ERROR-FREE OPERATION OR PROVISION OF THE SERVICES, THAT THE SERVICES WILL BE FREE FROM INTERRUPTION, THAT THE SERVICES WILL BE SECURE FROM UNAUTHORIZED ACCESS, THAT THE SERVICES WILL DETECT EVERY SECURITY OR OTHER VULNERABILITY OF CUSTOMER’S OPERATING ENVIRONMENT, OR THAT RESULTS GENERATED BY THE SERVICES WILL BE ERROR-FREE, ACCURATE OR COMPLETE. ALL SERVICES ARE PROVIDED TO CLIENT “AS IS”. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, MSP HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

Third-Party Products and Services. Where feasible and commercially reasonable, MSP will pass through any warranties on Third-Party Services, Third-Party Software, and THIRD-PARTY PRODUCTS, but MSP makes no warranty of any kind, either express or implied, regarding the functionality or quality of such third-party products, equipment, software, or services,  and the Client should look to the warranties provided by the applicable manufacturer or vendor.

LIMITATION OF LIABILITY.  This paragraph limits the liabilities arising under this Agreement, including, without limitation, from the Services, Services Agreements, MSA Schedules, and Policies, and is a bargained-for and a material part of our business relationship with you.  You acknowledge and agree that MSP would not provide any Services, or enter into any SOW or this Agreement, unless MSP could rely on the limitations described in this paragraph. In no event shall either party be liable for any indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits (except for fees due and owing to MSP), savings, or other indirect or contingent event-based economic loss arising out of or in connection with the Services, this Agreement, or any SOW even if a party has been advised of the possibility of such damages; however, reasonable attorneys’ fees awarded to a prevailing party (as described below), your indemnification obligations, and any amounts due and payable pursuant to the non-solicitation provision of this Agreement shall not be limited by the foregoing limitation.  Except for the foregoing exceptions, a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the amount of fees paid by you (excluding hard costs for licenses, hardware, etc.) to MSP for the specific Service upon which the applicable claim(s) is/are based during the six (6) month period immediately prior to the date on which the cause of action accrued or $10,000, whichever is greater. The foregoing limitations shall apply even if the remedies listed in this Agreement fail of their essential purpose; however, the limitations shall not apply to the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct, or gross negligence.  Similarly, a Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved Party’s willful or intentional misconduct, gross negligence, or to the extent that the Aggrieved Party failed to reasonably mitigate (or attempt to mitigate, as applicable) the Claims.

Governing Law and Venue. The Agreement governed by and construed in accordance with the laws of the Governing Law (as set forth on the MSA Cover Page). For any action that is not resolved through the arbitration procedures set forth in these General Terms, the Parties agree that jurisdiction and venue for any action arising under the Agreement and/or any applicable Service Agreements are exclusively in the state or federal courts located in the Venue (as defined on the MSA Cover Page).  The Parties specifically waive any claims they may have which involve jurisdiction or venue, including but not limited to forum non conveniens.  The 1980 Convention on Contracts for the International Sale of Goods is not applicable, in accordance with Article 6 of that convention. The provisions set forth in this Section shall survive the termination of the Agreement for any reason.

Arbitration. Except for collections actions to recover fees due to us (“Collections”), any dispute, claim or controversy arising from or related to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration before one arbitrator who is mutually agreed upon by the parties. The arbitration shall be administered and conducted by the American Arbitration Association (the “AAA”) pursuant to the AAA’s arbitration rules for commercial disputes (the “Rules”).  In the event of any inconsistency between the Rules and the procedures set forth in this paragraph, the procedures set forth in this paragraph will control.  The arbitrator will be experienced in contract, intellectual property and information technology transactions.  If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the arbitration venue shall select the arbitrator.  The arbitration shall take place in our office unless we agree to a different venue. The arbitrator will determine the scope of discovery in the matter; however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent.  Initially, the cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.

Miscellaneous.

Compliance.  Unless otherwise expressly stated in a Service Agreement, the Services are not intended, and will not be used, to bring Customer into full regulatory compliance with any rule, regulation, or requirement that may be applicable to Customer’s business or operations.  Depending on the Services provided, the Services may aid Customer’s efforts to fulfill regulatory compliance; however, the Services are not (and should not be used as) a compliance solution.

Virtual Security.  You understand and agree that no security solution is one hundred percent effective, and any security paradigm may be circumvented and/or rendered ineffective by certain malware, such as certain ransomware or rootkits that were unknown to the malware prevention industry at the time of infection, and/or which are downloaded or installed into the Environment.  We do not warrant or guarantee that all malware or malicious activity will be capable of being detected, avoided, quarantined, or removed, or that any data deleted, corrupted, or encrypted by such malware (“Impacted Data”) will be recoverable. Unless otherwise expressly stated in writing by us, the recovery of Impacted Data is out-of-scope. Moreover, unless expressly stated in writing by us, we will not be responsible for activating multifactor authentication in any application in or connected to the Environment. You are strongly advised to (i) educate your employees to properly identify and react to “phishing” activity (i.e., fraudulent attempts to obtain sensitive information or encourage behavior by disguising oneself as a trustworthy entity  or person through email), and (ii) obtain insurance against cyberattacks, data loss, malware-related matters, and privacy-related breaches, as such incidents can occur even under a “best practice” scenario.  Unless a malware-related incident is caused by our intentionally malicious behavior or our gross negligence, we are held harmless from any costs, expenses, or damages arising from or related to such incidents.

No Hire and Non-Solicitation.  The Parties acknowledge and understand that the other Parties employees related to the Services are skilled, specialized employees that receive significant training and investment to perform their duties under this Agreement and that hiring those employees away from a Party will cause substantial harm to the other Party.  As such, each party (a “Restricted Party”) acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement for any reason, the Restricted Party will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of the other party’s employees with whom the Restricted Party worked (each, a “Restricted Employee”) to discontinue or reduce the scope of the Restricted Employee’s business relationship with the other party, or hire a Restricted Employee without the other party’s permission.  In the event of a violation of the terms of the restrictive covenants in this section, a party will be given an opportunity to cure its default; however, if the default is not cured within a reasonable time thereafter (not to exceed ten (10) days after being notified in writing of the default), then the Parties acknowledge and agree that the damages to the other Party would be difficult or impracticable to determine, and in such event, the Restricted Party will pay the other Party as liquidated damages and not as a penalty an amount equal to one hundred thousand dollars ($100,000) or the amount that the other Party paid to that employee in the one (1) year period immediately preceding the date on which the Restricted Party violated the foregoing restriction, whichever is greater. In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to a Restricted Employee by the Restricted Party will be deemed to be a material breach of this Agreement, in which event the affected party shall have the right, but not the obligation, to terminate this Agreement immediately For Cause.

Collections. If we are required to send your account to Collections or to start any Collections-related action to recover fees, we will be entitled to recover all costs and fees we incur in the Collections process including but not limited to reasonable attorneys’ fees and costs.      

Assignment.  No part of this Agreement may be assigned or transferred by a Party without the prior written consent of the other Party.  This Agreement will be binding upon and inure to the benefit of the Parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, we may assign our rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of our business, or any other transaction in which ownership of more than fifty percent (50%) of our voting securities are transferred; provided, however, that such assignee expressly assumes our obligations hereunder in writing.

Amendment.  Unless otherwise expressly permitted under this Agreement, no amendment or modification of this Agreement will be valid or binding upon the parties unless such amendment or modification is in writing, specifically refers to this Agreement, and is accepted in writing by you.

Time Limitations.  The Parties mutually agree that, unless otherwise prohibited by law, any action for any matter arising out of or related to this Agreement, including Services and Service Agreements (except for matters related to nonpayment by Customer) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.

Severability.  If any term or provision of the Agreement is declared invalid by a court of competent jurisdiction, the remaining terms and provisions will remain in full force and effect, and the invalid terms or provisions are to be replaced by such valid terms and provisions that most nearly fulfill the Parties’ intention underlying the invalid term or provision.

No Waiver.  The failure of either Party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an Agreement to waive such terms with respect to any other occurrences.

Merger.  This Agreement sets forth the entire understanding of the Parties and supersedes any and all prior agreements, arrangements, communications, advertising claims or understandings related to the Services; however, any payment obligations that you have or may have incurred under any prior superseded agreement are not nullified by this Agreement and remain in full force and effect.  No representation, promise, inducement or statement of intention has been made by either Party which is not embodied herein.  We will not be bound by any statements in our advertisements or any agents’ or employees’ representations, promises or inducements if those statements are not explicitly set forth in this Agreement including, without limitation, any Service Agreements. 

Force Majeure.  Neither Party will be liable to the other Party for delays or failures to perform its obligations because of circumstances beyond such Party’s reasonable control (“Force Majeure”).  By way of example and not as a limitation, Force Majeure may include, but will not be limited to, any intentional or negligent act committed by the other Party, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God

Survival.  The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive.  If any provision in this Agreement is deemed unenforceable by operation of law, then that provision shall be excised from this Agreement and the balance of this Agreement shall be enforced in full.

Usage in Trade.  It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to this Agreement will be used to modify, interpret, or supplement in any manner the terms of this Agreement.

Business Day. If a time period set forth in this Agreement expires on a day other than a business day, then that time period will be extended to and through the next succeeding business day.  Federally recognized holidays in the United States of America (“Holidays”)are not business days.

Notices; Writing Requirement. All notices, demands or requests to be given by any Party to the other Party shall be in writing and shall be deemed to have been given on the date delivered in person, or sent via fax, courier service, electronic mail, or on the date of the third business day after deposit, postage prepaid, in the United States Mail via Certified Mail, return receipt requested, and addressed as set forth on the MSA Cover Page.  The address to which such notices, demands, requests, elections or other communications are to be given by either Party may be changed by written notice given by such Party to the other Party pursuant to this Section. Except where expressly stated otherwise in this Agreement, all electronic documents and communications between the Parties, including email, will satisfy any “writing” requirement under this Agreement.

Independent Contractor.  MSP is an independent contractor, and is not your employer, employee, partner, or affiliate. 

Data & Service Access. Some of the Services may be provided by persons outside of the United States and/or your data may occasionally be accessed, viewed, or stored on secure servers located outside of the United States. You agree to notify us if your company requires us to modify these standard service provisions, in which case additional (and potentially significant) costs will apply.

Counterparts.  The Parties intend to sign, accept and/or deliver this Agreement, including, without limitation, any Service Agreement, or any amendment in any number of counterparts, and each of which will be deemed an original and all of which, when taken together, will be deemed to be one agreement.  Each party may sign, accept, and/or deliver any part of this Agreement or any amendment electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature) or by reference (as applicable).