Master Service Agreement
This Agreement is by and between MSP USA, LLC dba Think Unified, a Texas corporation (“we,” “us,” or “MSP”), and the person or entity signing below as a CLIENT (“you” or “CLIENT”) and is made and entered into as of the latest date shown in the signature blocks below (the “Effective Date”).
This Agreement sets forth the terms and conditions upon which MSP will provide services (the “Services”) to CLIENT.
1. MASTER SERVICE AGREEMENT
1.1. Services. MSP shall provide CLIENT with the “Services” as described in this Agreement and in any schedules attached hereto (the “Schedules”). All such Services shall be subject to the terms and conditions of this Agreement and any terms or conditions printed on the Schedules. The term “Services”, when used within a Schedule attached hereto, shall refer to the services to be provided under that Schedule only. MSP shall provide CLIENT with sixty (60) days advance written notice of any changes to the terms and conditions of this agreement. CLIENT may choose to opt out of such changes with written notification to MSP within sixty (60) days of receiving the initial change notification and terminate the agreement without penalty. CLIENT agrees to pay any outstanding charges on the agreement up and until the date of termination.
1.2. Initial Schedules. A Schedule may be deemed attached hereto only when both parties have executed and agreed upon the Schedule in writing.
1.3. Remote Access. MSP will attempt to resolve issues over the phone or via remote access. If an issue is unable to be resolved in the manner, MSP will schedule an engineer for an on-site visit. MSP reserves the right to dispatch an engineer for any phone support exceeding 30 minutes or at the sole discretion of MSP should common practice dictate it would be more efficient to address the issue onsite.
2. SERVICE FEES AND PAYMENT SCHEDULE
2.1. Initial Setup Fee. MSP will perform the INSTALLATION as detailed herein or in any attached schedules. CLIENT agrees to pay any installation fees defined herein or in any attached schedules.
2.2. Monthly Fee. MSP will provide the services to the CLIENT as detailed herein or in any schedules attached to this agreement. The monthly service fee will be invoiced on or about the last day of each month prior to the month in which services are provided. For services based on a per-unit charge, CLIENT agrees to pay any differences in fees arising from an increase in the units billed, whether they be devices, storage, bandwidth, or any other defined unit. Payment is made automatically via ACH or credit card on the first of each calendar month. Payments for services or products outside the scope of the monthly service fee are not included in the monthly automated payments.
2.3. Late Payment. Late Payment is defined: (a) for ACH payments, payments refused by the issuing bank, (b) for credit card payments, payments not received (including, for instance, if payment is refused by the credit card issuer or credit card is expired and no new expiration date is provided) within 3 calendar days of the due date; and (b) for invoiced payments, payments not received within standard terms following our sending it via e-mail to your billing liaison. There is a late payment penalty of 5% of the amount past due. In addition, all past due amounts, including the late charge, shall bear interest at the lower of two percent per month or the applicable maximum legal rate. If there is any late payment(s) on your account, MSP, at its sole discretion and without waiving other rights it may have, may suspend, interrupt, or disconnect the Services on your account, without notice to you.
2.4. Hourly Rate. The hourly rates are defined for all system engineers and are billable for services outside the scope specifically defined in this agreement or any attached schedule(s) and may be changed with 60-days written notice. Current hourly rates and billable minimums are published at https://thinkunified.com/terms-and-conditions/. Client agrees to verify current rates and minimum charges online prior to requesting any billable service. The hourly rate is for time worked and is not tied to a resolution.
2.5. Billing Zone. On-site services are billed “portal-to-portal”. The hourly charges for on-site service begins when a billable staff member leaves the MSP headquarters and ends when that member finishes on-site.
2.6. Travel Expenses. Unless visiting a client office more than 60 miles from a Think Unified office, MSP will not invoice for any additional travel expenses to include parking and tolls. When visiting a client office more than 60 miles from a Think Unified office, travel expenses will be quoted in advance.
2.7. Additional Charges. There shall be added to the charges due an amount equal to all taxes based upon all services, equipment, hardware, software, freight and other applicable charges. This includes all state and local sales and use taxes based on gross revenue, and any taxes or amount in lieu thereof paid or payable by MSP in respect to the foregoing.
2.8. Payment Terms. Payments for services or products outside the scope of the monthly service fee will be invoiced once the products ship or once the quote is signed for services only. Payment is due fifteen (15) days after the date of the invoice.
2.9. Payment Terms. Payments for services or products outside the scope of the monthly service fee will be invoiced once the products ship or once the quote is signed for services only. Payment is due fifteen (15) days after the date of the invoice.
3. Term and Termination
3.1. TERM. The initial term for Services provided is (3) years from date of the first full monthly billing. This Agreement shall automatically renew for successive one year terms for the life of the CLIENT relationship. CLIENT may choose not to renew services for successive terms with a sixty (60) day written notice to MSP.
3.2. MSP will provide services in a competent manner, comparable to industry standards. If MSP does not provide services in such manner and cannot rectify the problem(s), within sixty (60) days from CLIENT written notice in which CLIENT identifies the problem(s), CLIENT will have the right to terminate the respective Schedule only.
3.3. Should CLIENT wish to cancel Hardware as a Service (HaaS) agreement(s) prematurely during the first three years, all remaining monthly fees are due and payable at the time of cancellation.
3.4. MSP, at its sole discretion, may terminate this Agreement if CLIENT: (a) becomes the subject of any proceedings under the Bankruptcy Act or other insolvency law, voluntary or involuntary, if such proceeding is not dismissed within ninety (90) days; (b) suffers a receiver to be appointed for its affairs or property; or (c) enters into an assignment, or other an arrangement, for the benefit of its creditors, or suffers an attachment against or a seizure of a substantial part of its assets, equipment or its parts and inventories. However, CLIENT’s responsibility for past due amounts shall survive each bankruptcy proceeding provided the acknowledgment of such liability by CLIENT will not affect the discharge of CLIENT regarding other general creditors.
3.5. In the case of default by either party under this Agreement, the defaulting party will reimburse the non-defaulting party for all costs and expenses arising from the default, including reasonable attorney fees if the non-defaulting party engages legal counsel to preserve or enforce such rights under this Agreement, including the collection of any payments due.
3.6. Termination of this Agreement will not adversely affect any right existing as of the effective date of termination. The rights and remedies provided under this Agreement are cumulative and in addition to any other rights or remedies available at law and in equity, and any other contract instrument or paper.
4. Ownership of Data
Backup data being stored both on provided equipment and at MSP Data Center remains the sole property of the CLIENT. If CLIENT chooses to terminate services, MSP will assist CLIENT in the orderly termination of services at its current rate structure. This could involve copying the backup image to an external drive. CLIENT agrees to pay MSP the actual costs of rendering such assistance to include hardware if necessary.
5. Loaned Equipment
CLIENT agrees that certain items, including but not limited to the NAS unit utilized by MSP in the execution of the Backup and Disaster Recovery Service and the firewall used in the managed firewall service shall remain the property of MSP, and must be returned if requested. CLIENT further agrees to cease the use of any technology that remains the property of MSP upon termination of this agreement. If any equipment at the CLIENT site owned by MSP is stolen, damaged or destroyed, CLIENT must pay the equivalent of the current retail replacement value of the device within 15 days of said event.
6. Equipment and Facilities
CLIENT agrees that MSP may utilize certain items of CLIENT’s equipment and may gain access to certain CLIENT facilities. CLIENT retains title and ownership in all of CLIENT’s equipment owned by CLIENT and utilized by MSP, and must grant authority for MSP to access CLIENT’s facility. Facility access may be denied for any reason at any time, however if access to facilities is denied, CLIENT understands that MSP may be unable to perform its duties adequately and if such a situation should exist, MSP will be held harmless.
7. Insurance Coverage
MSP shall maintain at its sole expense commercial general liability insurance for personal injury and property damage for a general aggregate of $1,000,000; worker’s compensation insurance as required by law; and hired and non-owned automobile liability insurance for the combined single limit of $1,000,000. At CLIENT’s request, MSP further agrees to furnish CLIENT with certificates, including renewal certificates, evidencing such coverage within thirty (30) days of commencing performance under this Agreement, at every renewal and at other times as may be reasonably requested by CLIENT.
Each party hereby agrees to indemnify and hold the other party harmless from and against any and all third-party claims, demands, actions, losses, liabilities, costs and expenses (including reasonable attorney’s fees) arising out of or resulting from the performance, or lack of performance, of each party’s activities under this Agreement. MSP shall defend and indemnify CLIENT against all claims, damages, etc. arising from MSP employees’ and agents’ activities at CLIENT facilities.
9. Force Majeure
MSP shall not be liable for failure to perform any of its obligations under this Agreement during any period in which such performance is delayed by accidents beyond MSP’s reasonable control, such as, but not limited to fire, flood, or other natural disasters, or, embargo, court order, riot, or other intervention of any government authority, provided that MSP immediately notifies CLIENT of such delay. If MSP’s performance is delayed for these reasons for a cumulative period of forty-five (45) days or more from the date of such notice, CLIENT may terminate this Agreement by giving MSP written notice.
- All notices herein provided for, or which may be given in connection with this Agreement shall be sent via regular mail or email. If any such notice shall be given by CLIENT to MSP, it shall be addressed to:
7700 Windrose Ave, Suite G300, Floor 3
Plano, TX 75024
11. Representation and Warranties
We represent and warranty that we (a) have the right, power and authority to enter into this Agreement and to fully perform all of our obligations hereunder; and (b) will use commercially reasonable efforts to provide all services required of us under the Agreement in accordance with prevailing industry standards. You represent and warranty that you (a) have the right, power, and authority to enter into this Agreement and to fully perform all of your obligations hereunder.
Disclaimer of Warranties: Limitation of Damages
12.1. THE EXPRESS, BUT LIMITED WARRANTY IN SECTION 11 ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING OUR SERVICES AND WE AND OUR AFFILIATES SPECIFICALLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ALL WARRANTIES (IMPLIED OR EXPRESS) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE INFORMATION OR AGAINST INFRINGEMENT REGARDLESS OF WHETHER THE ACTION AROSE INSIDE OR OUTSIDE THE UNITED STATES. THERE IS NO WARRANTY AGAINST INACCURACY. THERE IS NO WARRANTY OF SYSTEMS INTEGRATION. THERE IS NO WARRANTY THAT OUR OBLIGATIONS UNDER THIS AGREEMENT WILL FULFILL ANY OF YOUR OR ANY AUTHORIZED USER’S PARTICULAR PURPOSES OR NEEDS.
12.2. WE PROVIDE THE SERVICES “AS IS”. YOU EXPRESSLY AGREE THAT USE OF OUR SERVICES IS AT THE SOLE RISK OF YOU AND EACH AUTHORIZED USER. YOU ACKNOWLEDGE THAT THE USE OF THE SERVICES BY YOU AND EACH AUTHORIZED USER ARE AT YOUR OWN RISK AND THAT THERE IS NO WARRANTY OF INTERRUPTED OR ERROR-FREE SERVICE OR ACCURACY OR RELIABILITY.
12.3. WE AND OUR AFFILIATES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST DATA OR CONFIDENTIAL INFORMATION, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, COSTS OR PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION ARISING FROM OR RELATING TO THIS AGREEMENT OR ARISING FROM OR RELATING TO THE USE OF THE SOFTWARE WHICH HAS BEEN MODIFIED BY ANYONE OTHER THAN US, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE, THAT RESULT FROM THE USE OR INABILITY TO USE THE SERVICES OR FROM MISTAKES, OBMISSIONS, INTERRUPTIONS, DELETION OF FILES OR DIRECTORIES, LOSS OF DATA, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY INDLUDING NEGLIGENCE OR OTHER TORTS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.4. YOU ACKNOWLEDGE AND AGREE YOU HAVE RELIED ON NO WARRANTIES EXCEPT OUR LIMITED EXPRESS WARRANTY IN SECTION 11.
12.5. You agree that the total liability of us and our Affiliates and the sole remedy of you and any End User for any claims regarding our services is limited to your right to terminate this Agreement. Further, should a court nonetheless find that a remedy is not exclusive or that we are for any reason nonetheless liable for money damages, our cumulative liability in connection with this Agreement and our Services, whether in contract, tort or otherwise, shall not exceed the amount paid to us under this Agreement during the three months preceding the events giving rise to such liability. The existence of more than one claim shall not enlarge that limitation of liability.
12.6. We are not obligated to exercise any control over the content of the information passing through our network except those controls expressly provided in this Agreement.
12.7. Except as expressly provided in the Agreement, you acknowledge that (a) we are in no manner responsible for any action or inaction of any third party, including, but not limited to, hardware or software vendors or Internet service providers; (b) we have not represented that the Services shall be uninterrupted, error-free, or without delay; and (c) we do not and cannot control the flow of data through the Internet, and such flow depends in large part on the performance of third parties whose actions or inaction can, at times, produce situations in which connections to the Internet (or portions thereof) may be impaired or disrupted. ACCORDINGLY, YOU ACKNOWLEDGE THAT WE DISCLAIM ALL LIABILITY RELATED TO EVENTS OUTSIDE OF OUR CONTROL AND/OR IN THE CONTROL OF THIRD PARTIES, AND YOU SHALL HAVE NO RIGHT TO RELY UPON ANY REPRESENTATION OR WARRANTY OF ANY THIRD PARTY IN RESPECT TO THE SERVICES. Further, you acknowledge that, in providing the Services, we shall necessarily rely upon information, instructions, and services from you, your Administrator, employees, and agents, and any other third parties providing computer and communications hardware, software, and Internet services. Except as expressly provided in the Agreement, you fully assume the risk associated with errors in such information, instructions, and services.
13.1. This Agreement shall be governed by the laws of Texas and constitutes the entire Agreement between MSP and CLIENT with respect to furnishing of services hereunder. No provision of the Agreement shall be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is in writing signed by the party against whom it is sought to enforce the waiver, amendment or modification.
13.2. The foregoing terms and conditions shall prevail notwithstanding any variance with the terms and conditions of any order submitted by the CLIENT for service hereunder.
13.3. Severability. Should any provision of this Agreement be invalid, or unenforceable, the remainder of the provisions will remain in effect. In the event of a dispute, the prevailing party in any litigation or arbitration will be entitled to recover its attorneys’ fees and cost incurred from the other party.
14. Confidentiality and Solicitation of Employees
14.1. CONFIDENTIALITY. MSP recognizes that in the course of performing Services, it may have access to confidential and proprietary information, and trade secrets concerning CLIENT’s business and operations, including, without limitation, financial and tax information, business plans and development strategy, and marketing methodology, (collectively referred to as “Confidential Information”). MSP recognizes that disclosure of the Confidential Information to competitors, non-authorized third parties or the general public would be detrimental to the Company. Accordingly, MSP covenants and agrees with CLIENT that it will keep secret and treat confidentially the Confidential Information, and will not disclose any of the Confidential Information to any person or entity nor shall MSP use the Confidential Information for any purpose other than purposes which serve CLIENT.
14.2. SOLICITATION OF EMPLOYEES. CLIENT acknowledges that MSP is involved in a highly strategic and competitive business. CLIENT further acknowledges that CLIENT would gain substantial benefit and that MSP would be deprived of such benefit, if CLIENT were to directly hire any personnel employed by MSP. Except as otherwise provided by law, CLIENT shall not, without the prior written consent of MSP, solicit the employment of MSP personnel or induce any MSP personnel to leave to go to another firm during the term of this Agreement and for a period of two (2) years following the termination or expiration of this Agreement. CLIENT agrees that MSP damages resulting from breach by CLIENT of this provision would be extremely difficult to ascertain the actual amount of damages. Therefore, in the event CLIENT violates this provision, CLIENT shall immediately pay MSP an amount equal to US $50,000 as liquidated damages and MSP shall have the option to terminate this Agreement without further notice or liability to CLIENT. The amount of the liquidated damages reflected herein is not intended as a penalty and is reasonably calculated based upon the projected costs MSP would incur to identify, recruit, hire and train suitable replacements for such personnel.
15. Client Responsibilities
15.1. CLIENT must provide MSP with all appropriate usernames and passwords required to access network resources (i.e. Administrator usernames and passwords, router telnet passwords) and maintain all necessary media, license keys, and vendor contact numbers and provide access to that information when needed.
15.2. IT IS THE RESPONSIBILITY OF THE CLIENT TO ENSURE THAT PRESCRIBED BACKUP OPERATIONS PERFORMED BY MSP ARE ADEQUATE.
15.3. CLIENT must maintain third-party support agreements for line-of-business software and hardware. All third-party support and maintenance agreements shall be provided at CLIENT’s expense. CLIENT acknowledges that MSP cannot and will not be capable of supporting line-of-business software and hardware without active support or maintenance agreements with the software or hardware manufacturer.
15.4. CLIENT must maintain current software licenses and hardware as needed by line of business software(s), operating systems or security requirements. For example, Microsoft’s XP operating system is no longer supported by Microsoft. So the operating system needs to be replaced on the old PC or a new PC with the current operating system needs to be purchased.
16. Entire Agreement
ENTIRE AGREEMENT. This Agreement, including without limitation all Schedules, sets for the entire agreement between MSP and CLIENT with respect to the subject matter hereof and supersedes all previous written or oral agreements or representations between MSP and CLIENT with respect to such subject matter.