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”).
(“Agreement”) is made this 3rd of November 2023 (“Effective Date”) by and between Northern Virginia Computer Solutions, LLC (“Master Service Provider” or “MSP”), 12608B Lake Ridge Dr. Woodbridge, VA 22192, and Doctor’s Name, Business Name, (“Customer”), Customer Address – Street, City, State Zip
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.
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 Product within 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.
Customer will pay MSP all amounts 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Upon request, each Party agrees to promptly return the other Party’s Confidential Information in its possession, custody, or control19.
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.
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.
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.
This Agreement may not be amended except by a writing executed by an authorized individual MSP.
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.
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.
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.
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.
Customer may not assign its rights or obligations under this Agreement without MSP’s prior written consent which shall not be unreasonably withheld.
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: Northern Virginia Computer Solutions, LLCClient:Doctor’s Name
Signature: __________________________ Signature: __________________________
Name: ________________________________Name: _____________________________
Title: ________________________________Title: ______________________________