Master Service Agreement

SCOPE OF AGREEMENT. This Agreement serves as a master agreement and applies to Customer’s purchases from MSP, of services (“Services”), as well as licenses for software, hardware, support and maintenance services, and/or subscription services (collectively, “Product”).
1. Orders. Customer hereby engages and retains MSP to render Services as more particularly set forth in an estimate, quote, purchase order form, statement of work, or other mutually acceptable order documentation (each, an “Order”) that is written based on an individual project and/or ongoing managed services, and that is presented by MSP to Customer and accepted by Customer (including by digital signature). The parties hereby agree that they may execute multiple Orders and SOWs under this Agreement.
2. Incorporation of Exhibits. The following exhibits are incorporated into this Agreement by this reference and form a part hereof:
3. No Services Without an Order. No Product or Services will be provided under this Agreement alone. Each purchase of Product and/or Services requires an executed Order which contains terms relating to this Agreement and, upon execution by both parties, is deemed incorporated in this Agreement for all purposes.
4. Order of Precedence. In the event of any conflict among the documents comprising this Agreement (the “Contract Documents”), the following order of precedence applies (highest to lowest):
  1. any executed Statement of Work (“SOW”), but only with respect to the scope/pricing expressly addressed therein;
  2. any executed Order that is not an SOW, but only with respect to the scope/pricing expressly addressed therein;
  3. Exhibit A (Service Schedule / Terms of Services);
  4. Exhibit C -Service Level Agreement
  5. Exhibit B (Fees & Billing Schedule);
  6. and, the body of this Master Services Agreement.
5. SLA Scope. Exhibit C (SLA) governs response times, resolution targets, severity definitions, escalation, and coverage windows for support requests, but only to the extent applicable to Included Services under Exhibit A and the applicable Order. The SLA does not expand Included Services, create project obligations, or modify fees except as expressly stated in an executed Order or SOW.
TERM AND TERMINATION. Unless otherwise indicated on an Order or SOW, this Agreement will begin on the Effective Date and will continue for a period no less than twelve (12) months (the “Initial Term”).
1. Termination for Cause by MSP. MSP may:
  1. terminate a specific Order if Customer fails to pay any applicable fees due for that Order within thirty (30) days after receipt of written notice from MSP of non-payment; and/or
  2. terminate this Agreement or an Order if Customer commits any other material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice from MSP.
2. Termination for Cause by Customer. Customer may terminate this Agreement or an Order if MSP commits a material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice from Customer.
3. Termination for Convenience by Customer. Customer may terminate this Agreement or an Order for any reason upon thirty (30) days written notice to MSP.
4. Effect of Termination. If an Order for Services is terminated, Customer will promptly pay MSP for Services rendered and expenses incurred through the termination date.
PAYMENT.
Customer will pay MSP all fees due upon receipt of an invoice specifying the amounts due (“Fees”). All Fees payable under this Agreement are exclusive of sales, use, excise, and any other applicable transaction taxes, which Customer will pay (excluding taxes based upon the net income of MSP).

If payment is not received on or before any invoice due date, interest shall begin to accrue and be payable at the lesser of the maximum rate permitted under applicable law or one and one-half percent (1.5%) per month (or any other interest rate in accordance with state law), from the date due until paid in full.

Customer shall pay all expenses, including actual attorneys’ fees, incurred by MSP or its representatives in enforcing its rights under this Agreement, provided that MSP is successful on the merits.

Customer’s obligation to pay undisputed amounts due for Services and MSP’s right to all such amounts are absolute and unconditional. Customer is not entitled to setoff of such amounts.

All Fees will be detailed in an Order. Unless otherwise stated in an Order, Customer agrees to pay or reimburse MSP for all actual, necessary, and reasonable expenses incurred by MSP in performance of such Order, which are capable of verification by receipt. MSP will submit invoices to Customer for such fees and expenses either upon completion of the Services, or at stated intervals, in accordance with the applicable Order or SOW.
1. Fees & Billing Schedule Controls. Unless otherwise stated in an executed Order or SOW, fees, billing timing, after-hours multipliers, and chargeable items are governed by Exhibit B (Fees & Billing Schedule).

CONFIDENTIALITY AND NON-DISCLOSURE.

Both Parties to this Agreement recognize that, from time to time, they may come into contact with information that the other Party considers confidential.

“Confidential Information” is defined for this Agreement as all information (whether written or oral) that comes into a Party’s possession under or in connection with this Agreement that is reasonably considered by the disclosing Party to be confidential.

The Parties shall keep all Confidential Information in strict confidence. The recipient will: (a) use a reasonable standard of care in protecting Confidential Information, which will not be less than the standard of care the recipient uses to protect its own confidential information; (b) only use Confidential Information to perform its obligations and exercise its rights under this Agreement; (c) not disclose Confidential Information to any third party; and (d) when requested by the disclosing Party, return or destroy the Confidential Information.

PROVISION OF MATERIALSAND SERVICES TO MSP.
Customer agrees to timely furnish, at its own expense, all personnel, all necessary computer hardware, software and related materials and appropriate and safe workspaces for purposes of MSP performing the Services. Customer will also provide MSP with access to all information, passwords and facilities requested by MSP that is necessary for MSP to perform the Services.

Access may be denied for any reason at any time; however, if access to information, passwords or facilities is denied, Customer understands that MSP may be unable to perform its duties adequately and, in such case, MSP will be held harmless.

WORKING ENVIRONMENT. Customer shall provide a suitable, professional, and safe working environment for any Equipment located at Customer’s facility and for any MSP personnel performing Services at Customer’s site. Such environment includes, but is not limited to, appropriate temperature, static electricity and humidity controls, and properly conditioned electrical supply for each piece of Equipment. Customer shall bear the risk of loss of any Equipment located at Customer’s facility.
1. Non-Hostile Work Environment. Customer shall ensure that MSP personnel are not subjected to a hostile, threatening, abusive, or unsafe work environment while on Customer premises or while interacting with Customer personnel (whether in person, by telephone, or electronically). MSP may suspend or decline onsite Services (or remove personnel from the site) if MSP, in its reasonable discretion, determines that working conditions are unsafe or that MSP personnel are being subjected to harassment, intimidation, discrimination, threats, or abusive conduct. Any delay or non-performance resulting from such suspension or removal will not constitute a breach by MSP. If onsite Services are suspended or delayed due to conditions described in this Section 6.1, MSP may invoice for time incurred and reasonable demobilization/remobilization costs, and the Parties will cooperate in good faith to resume Services once conditions are corrected.
2. Customer Cooperation. Customer shall designate an authorized point of contact to coordinate onsite access, escorts if required by Customer policy, and safe access to work areas. Customer will promptly address any reported workplace conduct or safety issues affecting MSP’s performance.

CUSTOMER RESPONSIBILITY FOR EQUIPMENT.
Customer acknowledges that from time to time (a) MSP may identify additional items that need to be purchased by Customer, and (b) changes in Customer’s systems may be required for MSP to meet Customer’s requirements. In connection therewith, Customer agrees to work in good faith with MSP to effectuate such purchases or changes.

If MSP is required to purchase any assets, including computer hardware and/or software, in connection with MSP providing the Services, all such assets will remain the sole property of MSP unless specifically stated otherwise in writing.

Customer will be responsible for the quality, completeness and workmanship of any item or service furnished by it and for ensuring that the materials provided to MSP do not infringe or violate the rights of any third party.
CUSTOMER DATAOWNERSHIP AND RESPONSIBILITY. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any data, information or material proprietary submitted by Customer to MSP.
1. Software Installation or Replication. If MSP is required to install or replicate Customer software as part of the Services, Customer will independently verify that all such software provided by Customer is properly licensed. Customer’s act of providing any software to MSP will be deemed Customer’s affirmative acknowledgement to MSP that Customer has a valid license that permits MSP to perform the Services related thereto.
  
  In addition, Customer will retain the duty and obligation to monitor Customer’s equipment for the installation of unlicensed software unless MSP in a written statement of work (“SOW”) expressly agrees to conduct such monitoring. Customer will indemnify and hold harmless MSP against all damages and expenses it may incur (including reasonable attorney’s fees and disbursements) related to Customer providing infringing materials to MSP or any Customer breach of this Section.
INTELLECTUAL PROPERTY. All Intellectual Property will be handled on a case-by-case basis.

WARRANTY.
MSP warrants that it will perform the Services substantially in accordance with the specifications set forth whether under this Agreement, an Order, SOW, purchase order, other work order or otherwise in connection with any of them.

For any breach of the foregoing warranty, MSP will exercise commercially reasonable efforts to re-perform any non-conforming Services that were performed within the ten (10) business day period immediately preceding the date of Customer’s written notice to MSP specifying in reasonable detail such non-conformance. If MSP concludes that conformance is impracticable, then MSP will refund all fees paid by Customer to MSP hereunder, if any, allocable to such nonconforming Services.

Notwithstanding the above, MSP does not warrant its products or services beyond a reasonable standard of skill consistent with industry standards. MSP does not guarantee or promise any cost savings, profits, or returns on investment.

SOFTWARE HARDWARE & SECURITY.
Customer understands and agrees that data loss or network failures may occur, whether foreseeable or not, if Customer fails to maintain proper security for its computer and information system including software and hardware updates. Customer therefore warrants that it will follow software and hardware updates and maintain specific security standards, policies, and procedures set forth by MSP.

TERRORISM AND CYBER TERRORISM. In no event, including the negligent act or omission on its part, shall MSP, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s) other than MSP, committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom.

TELEMARKETING & UNSOLICITED EMAILS. In no event shall MSP, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if the Customer’s data is breached because of the distribution of unsolicited email, direct mail, facsimiles, telemarketing or because of the collection of information by means of electronic “spiders”, “spybots”, “spyware”, wiretapping, bugging, video cameras or identification tags.

EXTRAORDINARY EVENTS. In no event shall MSP, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any failure or malfunction of electrical or telecommunications infrastructure or services not under MSP’s control, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God or other physical event.

LIMITATIONSOF LIABILITY.EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL MSP BE LIABLE TO CUSTOMER FOR SPECIAL, INCIDENTALOR CONSEQUENTIAL DAMAGES, OR FOR ANY AMOUNT IN EXCESS OF THE LICENSE FEE OR FOR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATALOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES, EXCEPT WITH RESPECT TO INDEMNITIES ARISING OUT OF IP CLAIMS. UNDER NO CIRCUMSTANCES, SHALL MSP’S AGGREGATELIABILITY ARISING FROM OR OUT OF OR RELATINGTO THIS AGREEMENT EXCEED THE FEES PAID UNDER THIS AGREEMENT. MSP SHALL NOT BE LIABLE TO CUSTOMER FOR ANY DELAYIN DELIVERY OR PERFORMANCE, OR FAILURE TO DELIVER OR PERFORM ATOR WITHIN THE DEADLINES SET FORTH IN THIS AGREEMENT UNLESS SUCH DELAYOR FAILURE IS A RESULTOF MSP’S NEGLIGENCE.

INSURANCE. MSP agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by this Agreement and by law. Without limiting the foregoing, to the extend this Agreement creates exposure generally covered by the following insurance policies, MSP will maintain at its own sole cost and expense at least the following insurance covering its obligations under this Agreement:
1. Commercial General Liability including
  1. bodily injury,
  2. property damage,
  3. contractual liability coverage, and
  4. personal injury, in an amount not less than One Million Dollars ($1,000,000) per occurrence;
2. Business Automobile Liability for owned, hired and non-owned vehicles in an amount of not less than One Million Dollars ($1,000,000) for each accident;
3. Workers Compensation at statutory limits; and
4. Professional Liability. Insurance covering errors and omissions and wrongful acts in the performance of the Services. Such insurance will bear a combined single limit per occurrence of not less than One Million Dollars ($1,000,000).

DISCLAIMERS. The express remedies set forth in this Agreement will constitute Customer’s exclusive remedies, and MSP’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (b) that the Services were performed improperly. MSP shall not be responsible for impairments to the Services caused by acts within the control of Customer or its employees, agents, contractors, suppliers or licenses, the interoperability of Customer applications, or other cause reasonably within Customer’s control and not reasonably related to services provided under this Agreement. EXCEPT FOR THE WARRANTIES MADE BY MSP IN SECTION 10, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CUSTOMER, THE SERVICES AND DELIVERABLES ARE PROVIDED STRICTLY “AS-IS.” MSP DOES NOT MAKE ANY ADDITIONAL WARRANTIES, EXPRESSED, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE DELIVERABLES OR SERVICES PROVIDED HEREUNDER, OR ANY MATTERWHATSOEVER. THE PARTIESDISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORYQUALITY, TITLE AND NONINFRINGEMENT. MSP DOES NOT WARRANT THATTHE SERVICES OR ANY DELIVERABLES WILL MEET ANY CUSTOMER REQUIREMENTS NOT SET FORTH HEREIN, THATANY DELIVERABLES WILL OPERATEIN THE COMBINATIONS THATCUSTOMER MAYSELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THATALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO CUSTOMER, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND. No statement by any MSP employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify this Agreement in any way whatsoever.

SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, operative and enforceable, to the maximum extent permitted by law or equity while preserving its original intent. The invalidity of any part of this Agreement shall not render invalid the remainder of this Agreement.

AMENDMENT. This Agreement may not be amended except by in writing executed by an authorized individual of both MSP and Client.

RELATIONSHIP. The Parties are independent parties; and this Agreement does not make the Parties principal and agent, partners, employer, and employee; nor does it create a joint venture.

LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without reference to principles of conflicts of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Florida.

WAIVER. Failure by either Party to insist upon strict performance of any provision herein shall not be deemed a waiver by such Party of its rights or remedies, or a waiver by it of any subsequent default by the other Party.

FORCE MAJEURE. With the exception of Customer payment for Services rendered, neither party shall be responsible for any failure to perform, or delay caused where such failure or delay is due to circumstances reasonably beyond the party’s control.

ASSIGNMENT. Customer may not assign its rights or obligations under this Agreement without MSP’s prior written consent which shall not be unreasonably withheld.

COUNTERPARTAND ELECTRONIC SIGNATURES. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. The Customer’s electronic signature of this Agreement shall have the same validity and effect as a signature affixed by the Customer's hand.

ENTIRE AGREEMENT. This Agreement (together with all Orders, Statements of Work, and incorporated exhibits/schedules) constitutes the entire agreement by and between the Parties regarding the subject matter hereof and supersedes and replaces any and all prior and contemporaneous master services agreements, managed services agreements, proposals, statements, representations, negotiations, and understandings, whether written or oral, relating to such subject matter. In the event of any conflict among the Contract Documents, the Order of Precedence set forth in this Agreement controls.

Knox Technology Master Service Agreement