Master Service Agreement

MASTER SERVICE AGREEMENT

THIS MASTER SERVICE AGREEMENT (“Agreement”) is made this _______ of ______, 20___ (“Effective Date”) by and between Northern Virginia Computer Solutions, LLC (“Master Service Provider” or “MSP”), 12608B Lake Ridge Dr. Woodbridge, VA 22192 and ________________:____________________

(“Customer”).

1. SCOPE OF AGREEMENT. This Agreement serves as a master services 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, “Products”). Customer hereby engages and retains MSP to render Services and purchase Products as more particularly set forth in Addendum A (the “Statement of Work”) attached hereto and incorporated herein by reference. No Product or Services will be provided under this. Agreement. until the Customer executes a written or electronic purchase order form (“Order” or “Purchase Order”), or other mutually acceptable order documentation, which contains terms relating to this Agreement (“Statement of Work” or “SOW”), each of which must be executed by both parties and, upon such execution, is deemed incorporated in this Agreement for all. purposes. The parties hereby further agree that the parties may execute multiple Orders and Statements of Work under this Agreement. In the event of any conflict between the terms of the Purchase Order and Statement of Work and those of this Agreement, the terms of the Purchase Order or Statement of Work will prevail.
2. Term and Termination. This Agreement will begin on the Effective Date and will continue in accordance with the term of the Statement of Work, which is three (3) years for a standard Statement of Work or four (4) years for Hardware As A Service (“HAAS”). MSP may: (a) terminate a specific Order or SOW if Customer fails to pay any applicable amounts due for Service or Productwithin 30 days after receipt of written notice from MSP of non-payment; and/or (b) terminate this Agreement or an Order or SOW, 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. If an Order or SOW is terminated, Customer will promptly pay MSP for Services rendered, and expenses incurred through the termination date. Each of the foregoing shall constitute a default by Customer for which Customer shall be responsible to the MSP for late fees, interest, costs and expenses of collection of amounts due, including, but not limited to actual attorney fees and costs.
3. Payment. Customer will pay MSP all amounts due due upon receipt of an invoice specifying the amounts due (hereinafter “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 at the rate of one and one-half percent (1.5%) (or any other interest rate in accordance with the state’s law) per month 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, if MSP is the prevailing party in any dispute. Customer’s obligation to pay 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 Invoice or Purchase Order. Unless otherwise stated in a Purchase Order or SOW, Customer agrees to pay or reimburse MSP for all actual, necessary, and reasonable expenses incurred by MSP in performance of such Purchase 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 Purchase Order.
4. CONFIDENTIALITY AND NON-DISCLOSURE. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), in any format whether oral, written, electronic, or other, that is designated as confidential or that should be understood to be confidential given the nature of the information and the circumstances of disclosure.

4.1 Your Confidential Information shall include any personally identifiable information or protected health information of Your employees, Your customers, and Your Data. You acknowledge and agree that these Terms do not constitute a Business Associates Agreement (“BAA”) as that term is defined in the Health Insurance Portability and Accountability Act (HIPAA; Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996 and as amended), and that the requirement for any such agreement in addition to these Terms may be necessary to provide the Services hereunder. You shall be solely responsible for the consequences, if any, of moving forward with the Services hereunder without such a BAA and shall be the sole judge of the necessity for a BAA in addition to these Terms. Furthermore, You hereby agree to defend, indemnify and hold harmless MSP and any affiliated company, and our respective present and former shareholders, officers, directors and employees and our attorneys and agents, and our predecessors, successors, insurers, assigns, heirs, executors and administrators (collectively referred to as the “Indemnitee”), from and against any and all claims, demands, causes of action, actions, judgments, liabilities, losses, costs and expenses, including attorneys’ fees and costs, as they occur, brought against, imposed upon, or incurred or suffered by, the Indemnitee which in any way relate to the failure of You to comply with these Terms in proper handling of protected health information not caused by MSP’s gross negligence and/or due to the absence of any necessary BAA, or failing to notify MSP of the necessity of same.

4.2 Confidential Information of each Party shall include these Terms and all SOW’s, and/or other contract documents as well as business and marketing plans, technology and technical information, products, services, product plans and designs, trade secrets, and business processes disclosed by such Party.

4.3 Confidential Information (other than Client Data) shall not include any information that:

(i) is or becomes known to the public without breach of any obligation owed to the Disclosing Party,

(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,

(iii) is received from a third-party without breach of any obligation owed to the Disclosing Party, or

(iv) was independently developed by the Receiving Party.

4.4 Protection of Confidential Information. The Receiving Party shall:

(i) protect and safeguard the confidentiality of all Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care,

(ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement or otherwise in any manner to the Disclosing Party’s detriment, and

(iii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, subcontractors and agents who need such access for purposes consistent with this Agreement.

4.5 Non-disclosure. Neither Party shall disclose these Terms or any SOW and/or other contract documents to any third-party other than its affiliates, legal counsel, and accountants without the other Party’s prior written consent.

4.6 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

4.7 If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

1. Return or Destruction of Confidential Information. Upon request, each Party agrees to promptly return the other Party’s Confidential Information in its possession, custody, or control, or to certify the deletion or destruction of Confidential Information; provided, however, that the Receiving Party may retain a copy of any Confidential Information to the extent (a) required by applicable law or (b) it would be unreasonably burdensome to destroy. If return, or destruction of Confidential Information is unduly burdensome, or not feasible, the Parties shall extend the protections of these Terms to the retained Confidential Information.

5.1 PROVISION OF MATERIALS AND SERVICES TO MSP. If applicable because of the Services being provided, Customer agrees to timely furnish, at its own expense, all cooperative personnel who can assist MSP, 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 or its contracted subcontractors, with access to all information, passwords and facilities requested by MSP or its contracted subcontractors, 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 the MSP may be unable to perform their duties adequately and if such a situation should exist, the MSP will be held harmless by Customer and will not be obligated to perform any Services.

6. Conditions of Service. Your System and/or Network, as defined in the SOW, is eligible for provision of MSP’s Services as outlined in the SOW or other contractual documents, provided the System is in good condition and MSP’s serviceability requirements and site environmental conditions are met:

1. You shall provide adequate workspace, heat, light, ventilation, electric current and outlets, internet, remote access, and long-distance telephone access for use by MSP’s representatives.
2. MSP’s representatives shall have, and You shall provide full access to the Network to affect the necessary monitoring and/or supplemental services.
3. MSP reserves the right to suspend or terminate these Terms or any SOW if, in its sole discretion, conditions at the service site, as designated in the SOW (“Service Site”), pose a health or safety threat to any of MSP’s representatives.
4. All equipment, software, and licensing to be supported by MSP pursuant to these Terms, must be supportable by MSP and subject to patching, security updates, and manufacturer provided support.

6.5 Authorized Contact(s).  You understand and agree that MSP will be entitled to rely on any directions or consent provided to MSP by any of your Authorized Contacts, as indicated in an applicable SOW.  If no Authorized Contact is identified in an applicable SOW, then your Authorized Contact will be the person(s) (i) who signed this Agreement, and/or (ii) who signed the applicable SOW.  If you desire to change your Authorized Contact(s), please notify MSP of such changes in writing which, unless exigent circumstances are stated in the notice, will take effect three (3) business days thereafter.

6.6 Shared Administrator Credentials. If Customer shares server, network, or software application administrative credentials, MSP will not be held legally liable or responsible for any outages, errors, and misconfiguration since multiple administrators from different companies jeopardizes the integrity of the support outlined in this agreement.

6.7 It is the responsibility of You to promptly notify MSP of any events/incidents that could impact the Services and/or any supplemental service needs.

MSP shall provide Services during MSP’s regular business hours, unless otherwise specified in any subsequent SOW.

As noted in Paragraph 6.6, Only representatives authorized by MSP will be eligible to access and service Your network. Any unauthorized access or service conducted on the network without the explicit consent of MSP which results in negative network performance will not be covered by the monthly plan fee as documented in the SOW or other contract documents and will be billed according to MSP’s labor rates as outlined in the SOW.

MSP shall be obligated to provide Service only at the Service Site(s) as outlined in the SOW. If You desire to relocate, add or remove locations, you shall give appropriate notice to MSP of Your intention to relocate sixty (60) days in advance. MSP reserves the right to renegotiate Service Terms with respect to any relocation and/or addition of locations by You. Such right includes the right to refuse service at the relocation and/or new site.

It is mutually agreed that MSP will have no responsibility for any deficiencies in the System until the MSP has had a reasonable opportunity to conduct a review the current System and to provide You with Our recommendations and You have accepted and implemented same.

1. 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 make any purchase in accordance with the Order or SOW, and such changes shall be set forth in a Change Order under the then current SOW 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—said conditions shall act as a hold harmless to MSP in that a failure of said conditions will render MSP as fully indemnified from any and all potential liability to Customer or others. Unless otherwise specified in the Scope of Work and/or other contract documents that it is not the intent, nor does the MSP provide any type of backup of your data. Customer will maintain adequate backup for all data and other items furnished to MSP.

It is the Customers responsibility for any failure or malfunction of electrical or telecommunications infrastructure or services that causes damage to MSP’s products or services and MSP denies all responsibility for any loss including data.

1. CUSTOMER DATA OWNERSHIP 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 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. 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.
2. INTELLECTUAL PROPERTY. MSP retains all intellectual property rights in any property invented or composed during or incident to the performance of this Agreement, as well as any software, materials, or methods created prior to or after conclusion of any work. Customer acquires no right or interest in any such intellectual property, by virtue of this Agreement or the work performed under this Agreement.
   1. Customer may only use and disclose Product in accordance with the terms of this Agreement and applicable Order. MSP reserves all rights in and to the Product not expressly granted in this Agreement. Customer may not disassemble or reverse engineer any software. Product or decompile or otherwise attempt to derive any software Product’s source code from executable code, except to the extent expressly permitted by applicable law despite this limitation or provide a third party with the results of any functional evaluation, or benchmarking or performance tests on the Products, without MSP’s prior written approval. Except as expressly authorized in this Agreement or an Order, Customer may not (a) distribute the Product to any third party (whether by rental, lease, sublicense, or other transfer), or (b) operate the Product in an outsourcing or MSP business to process the data of third parties. Additional usage restrictions may apply to certain third-party files or programs embedded in the Product – applicable installation instructions or release notes will contain the relevant details.
   2. License Agreements.

(a) License. Subject to the terms of this Agreement, MSP grants Customer a perpetual, non-exclusive, non-transferable license to use and modify all programming, documentation, reports, and any other product provided as part of the Services solely for its own internal use.

EULA. Portions of the Services may require You to accept the terms of one or more third-party end user license agreements (“EULAs”). If the acceptance of a EULA is required to provide the Services to You, then You hereby grant MSP permission to accept the EULA on Your behalf. EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in these Terms. You agree to be bound by the terms of such EULAs and will look only to the applicable third-party provider for the enforcement of the terms of such EULAs. If, while providing the Services, MSP is required to comply with a third-party EULA and the third-party EULA is modified or amended, MSP reserves the right to modify or amend any applicable SOW with You to ensure our continued compliance with the terms of the third-party EULA.

You agree to hold harmless and Indemnify MSP against Your violation of any of the terms and conditions included in the subject EULA.

(b) Pre-Existing License Agreements. Any software product provided to Customer by MSP as a reseller for a third party, which is licensed to Customer under a separate software license agreement with such third party, will continue to be governed by the third-party license agreement.

1. Third-Party Products. Product warranties for third party products, if any, are provided by the manufacturers thereof and not by MSP. MSP’S sole obligation is to act on behalf of Customer to assist in the satisfaction of any such warranty.

1. WARRANTY.

MSP warrants that it or its contracted subcontractors, will perform the Services substantially in accordance with the specifications set forth whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them. For any breach of the foregoing warranty, MSP, or its contracted subcontractors, 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.

MSP does not warrant its products or services beyond a reasonable standard or skill consistent with industry standards. MSP does not warrant against any promises of cost savings, profits, returns on investment or delay in delivery of performance.

SOFTWARE HARDWARE & SECURITY. Customer understands and agrees that data loss or network failures may occur, whether foreseeable, if the 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, procedures set forth by the NIST Cybersecurity Framework available at https://www.nist.gov/cyberframework.

1. EXTRAORDINARY EVENTS. In no event shall MSP or its contracted subcontractors, whether under these Terms, an SOW, 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, mechanical or telecommunications infrastructure and equipment or services, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God, national or global pandemic, or other physical event. REDUNANT WITH FORCE MAJEURE.
2. 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) if and to the extent that they might otherwise not constitute indirect or consequential losses or expenses, 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 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 or assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things. Cyber Terrorism shall mean an 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), 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 electronic ally 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 there from.
3. TELEMARKETING & UNSOLICITED EMAILS. 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) if and to the extent that they might otherwise not constitute indirect or consequential losses or expenses, loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, 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.
4. RELEASE WITH LIMITATION OF LIABILITY.  THIS PARAGRAPH LIMITS THE LIABILITIES ARISING UNDER THESE TERMS OR ANY SOW AND IS A BARGAINED-FOR AND MATERIAL PART OF THESE TERMS. YOU ACKNOWLEDGE AND AGREE THAT MSP WOULD NOT ENTER INTO THESE TERMS UNLESS IT COULD RELY ON THE LIMITATIONS DESCRIBED IN THIS PARAGRAPH. YOU AND ANY OF YOUR AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, NOMINEES, CONSULTANTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “RELEASOR PARTIES”) AGREES TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT AS OTHERWISE NOTED IN THESE TERMS, AGREES TO RELEASE MSP AND ANY OF THEIR AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, SHAREHOLDERS, NOMINEES, CONSULTANTS, SUBCONTRACTORS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “RELEASED PARTIES”) FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES. MSP’S AGGREGATE LIABILITY RELATING TO ANY OF THE SERVICES SHALL BE QUANTIFIED IN THE SOW OR OTHER CONTRACT DOCUMENTS. TERMS OR AS DESCRIBED IN THE SOW. MSP SHALL NOT BE LIABLE TO YOU FOR ANY DELAY IN DELIVERY OR PERFORMANCE, OR FAILURE TO DELIVER OR PERFORM AT OR WITHIN THE DEADLINES SET FORTH IN THESE TERMS.
5. MUTUAL INDEMNIFICATION AND HOLD HARMLESS. EACH PARTY AGREES TO THE FULLEST EXTENT PERMITTED BY LAW SHALL AT ALL TIMES DEFEND, INDEMNIFY, PAY, SAVE AND HOLD THE OTHER PARTIES AND ANY OF THEIR AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, NOMINEES, SUBCONTRACTORS, CONSULTANTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “MUTUALLY INDEMNIFIED PARTIES”) HARMLESS FROM EACH AND ANY AND ALL LIABILITIES, DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL AND CONSEQUENTIAL DAMAGES), COSTS, EXPENSES, SUITS, CIVIL OR ALTERNATIVE DISPUTE RESOLUTION PROCEEDING, LOSSES, CLAIMS, ACTIONS, VIOLATIONS, FINES AND PENALTIES (INCLUDING WITHOUT LIMITATION, COURT COSTS, REASONABLE ATTORNEY’S FEES AND ANY OTHER REASONABLE COSTS OF LITIGATION) (HEREINAFTER COLLECTIVELY, THE “CLAIMS”) THAT ANY OF THE MUTUALLY INDEMNIFIED PARTIES MAY SUFFER, SUSTAIN OR INCUR TO THE EXTENT CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE MUTUALLY INDEMNIFIED PARTIES ARISING OUT OF THESE TERMS.

 

THE PRECEDING INDEMNIFICATION OBLIGATIONS ARE CONDITIONED ON ANY OF THE INDEMNIFIED PARTIES: (I) NOTIFYING THE INDEMNIFYING PARTY PROMPTLY IN WRITING OF SUCH ACTION; (II) REASONABLY COOPERATING AND ASSISTING IN SUCH DEFENSE; AND (III) GIVING SOLE CONTROL OF THE DEFENSE AND ANY RELATED SETTLEMENT NEGOTIATIONS TO THE INDEMNIFYING PARTY WITH THE UNDERSTANDING THAT THE INDEMNIFYING PARTY MAY NOT SETTLE ANY CLAIM IN A MANNER THAT ADMITS GUILT OR OTHERWISE PREJUDICES THE INDEMNIFIED PARTY, WITHOUT CONSENT.

17. MSP INSURANCE. MSP agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by these Terms and by law. Without limiting the foregoing, to the extent 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: (a) Commercial General Liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury, in an amount not less than One Million Dollars ($1,000,000) per occurrence; (b) Business Automobile Liability for hired and non-owned vehicles in an amount of not less than One Million Dollars ($1,000,000) for each accident; (c) Workers Compensation at statutory limits; and (d) 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). MSP shall have You included in the Professional Liability policy as an additional insured. Such status will provide protection, subject to the policy terms and conditions, where liability is imposed on You because of the wrongful act of MSP.

18. YOUR INSURANCE.

18.1. Commercial Property Insurance. You shall secure at Your own cost and expense Property Insurance for Your equipment that is part of the provisions of the service agreement.

18.2. Cyber Insurance. You shall secure and maintain for the duration of the contract Cyber Liability Insurance to insure Your cyber exposures. Specific limits and coverages should be evaluated by a qualified insurance broker or risk manager to determine Your specific coverage and policy limit requirements. A minimal $1,000,000 Policy per occurrence/aggregate limit is required.

18.3. Mutual Waiver of Subrogation. TO THE EXTENT PERMITTED BY LAW, EACH PARTY WAIVES ALL RIGHTS AGAINST THE OTHER FOR RECOVERY OF DAMAGES TO THE EXTENT THESE DAMAGES ARE COVERED BY THE WORKERS COMPENSATION (TO THE EXTENT PERMITTED BY LAW) AND EMPLOYERS LIABILITY, PROFESSIONAL LIABILITY, GENERAL LIABILITY, PROPERTY INSURANCE, COMMERCIAL UMBRELLA/EXCESS, CYBER OR OTHER COMMERCIAL LIABILITY INSURANCE OBTAINED BY EITHER PARTY. CLIENT WILL NOT HOLD MSP ITS SUBCONTRACTORS AND/OR THIRD-PARTY SERVICE PROVIDERS RESPONSIBLE FOR SUCH LOSSES AND WILL CONFIRM THAT YOUR INSURANCE POLICIES REFERENCED ABOVE PROVIDE FOR THE WAIVER OF SUBROGATION INCLUDED IN THE TERMS OF SERVICE.

1. LIEN ON EQUIPMENT. Customer does hereby grant, convey, and agree that Customer is giving a security interest to MSP in and on all hardware, software, and other goods (hereinafter collectively referred to as “Equipment”) delivered by MSP to Customer under this Agreement or any Task Authorization, which security interest shall be for the purpose of securing payment by Customer for all goods and services provided by MSP hereunder. MSP shall promptly release the security interest granted herein upon full and final payment of all fees and costs owed by Customer to MSP hereunder. If requested Customer will execute all documents, including financing statements, necessary for MSP to perfect the security interest granted herein.
2. FORECLOSURE OF SECURITY INTEREST. In the event Customer fails to make any payment due to MSP hereunder, MSP shall be entitled to foreclose on the security interest in all Equipment delivered to Customer hereunder and to immediately reclaim possession of all such Equipment from Customer’s premises, whether such Equipment has been installed or not, and without the need for a formal legal proceeding. Customer hereby waives notice and agrees to MSP’s repossession of any such Equipment in the event Customer defaults in payment hereunder. Customer understands and agrees that in the event MSP must foreclose on the security interest granted herein, Customer may lose information that is proprietary and otherwise, files, programs and other computer records maintained or stored by Customer on said Equipment and that MSP shall not be responsible for any such losses or damage to Customer’s records, information, files, or programs that occurs because of MSP’s foreclosure of the security interest granted herein. The fact that Customer has stored any proprietary or confidential information on any Equipment subject to the security interest granted herein, shall not in any regard preclude, limit, or restrict MSP’s right to foreclose and reclaim possession of Equipment hereunder. Customer agrees that any information or records Customer loads, maintains or stores on Equipment subject to the security interest granted herein, is so loaded, stored, and maintained subject to repossession of the Equipment and at Customer’s sole risk. MSP shall have the right to enter upon Customer’s premises to re-take possession of any Equipment subject to foreclosure hereunder.
3. 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 within Customer’s control and not 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 MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT.

MSP DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET ANY CUSTOMER REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL 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.

1. 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, 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.
2. AMENDMENT. This Agreement may not be amended except by a writing executed by an authorized individual MSP.
3. 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.
4. LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Virginia without reference to principles of conflicts of laws. The Parties irrevocably submit to the exclusive authority of the courts of Prince William, County in the State of Virginia. A failure on the part of the Customer to comply with the terms, covenants and conditions of this Agreement entered hereunder, shall be grounds for MSP, in its discretion, to institute injunctive proceedings or such other legal or equitable action, to enforce the terms of this Agreement and to recover MSP’s reasonable attorney’s fees and costs expended therein.
5. 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.
6. FORCE MAJEURE. Except for Customer payment for service rendered, neither party shall be responsible for any failure to perform, or delay caused where such failure or delay is due to circumstances beyond the party’s control. This includes fire, flood, earthquake, volcanic eruption, explosion, lightening, wind, hail, tidal wave, landslide, act of God or any other physical event.
7. ASSIGNMENT. Customer may not assign its rights or obligations under this Agreement without MSP’s prior written consent which shall not be unreasonably withheld.
8. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement by and between the Parties regarding the subject matter contained herein and supersedes all prior and contemporaneous undertakings and agreement of the Parties, whether written or oral, with respect to such subject matter.

MSP: _____________________________ Client:______________________________

 

Signature: __________________________ Signature: __________________________

Name: ________________________________ Name: _____________________________

Title: ________________________________ Title: ______________________________

Date: __________________________ Date:______________________________