Master Service Agreement
THIS MASTER SERVICE AGREEMENT (“Agreement” or “MSA”) is deemed executed as of the date of proposal acceptance (“Effective Date”) by and between Black Consulting Services, Inc., 507 N York St, Mechanicsburg, Pennsylvania, 17055 (“Managed Services Provider” or “MSP” or “BlackCSI”), and the customer electronically signing this online quote (“Client” or “Customer” or “You” or “Your”).
These terms (“Terms”) apply to Your purchases from Black Consulting Services, Inc. (“MSP”) of services (“Services”), as well as licenses for software, hardware, support and maintenance services, and/or subscription services (collectively, "Product"). You hereby engage and retain MSP to render Services or provide Product, as specifically set forth and limited in the “Statement of Work” or “SOW”, or subsequent Statements of Work, or any work order as agreed among the Parties (each a “Work Order”) under such SOW. Except as otherwise stated therein, subsequent SOWs or Work Orders shall be made a part of and subject to the terms contained herein. No Product or Services will be provided under these Terms alone, but will require the execution of a written or electronic SOW, or other mutually acceptable Work Order documentation, each of which must be executed by both Parties and, upon such execution, is deemed incorporated in these Terms for all purposes. In the event of any conflict between the Statement of Work and these Terms, the terms of the Statement of Work will prevail over these Terms.
MSP may change these Terms at any time. THE MOST CURRENT MSA IS AVAILABLE AT OUR WEB SITE at www.blackcsi.com/terms. Using the Services after the changes to these Terms become effective means You agree to the new terms. If You don’t agree to the new terms, You must stop using the Services, contact MSP and terminate any current SOW.
- GENERAL REQUIREMENTS & CONDITIONS.
- System. For the purposes of these Terms, “System” means, collectively, any computer network, computer system, peripheral or device installed, maintained, monitored, or operated by MSP pursuant to an SOW. To avoid a delay or negative impact on our provision of the Services, during the term of each SOW You agree to refrain from modifying or moving the System, or installing software on the System, unless MSP expressly authorizes such activity. MSP will not be held responsible or liable for changes made by client without authorization.
- Maintenance; Updates. If patches and other software-related maintenance updates (“Update(s)”) are provided under a SOW, MSP will install the Updates only if MSP has determined, in its reasonable discretion, that the Updates will be compatible with the configuration of the System and materially beneficial to the features or functionality of the affected software or hardware. MSP will not be responsible for any downtime or losses arising from or related to the installation or use of any Update, provided that the Update was installed in accordance with the manufacturer’s or applicable vendor’s instructions.
Third-Party Service Providers. “Third-Party Service Providers” means Services provided by an entity or a Party other than the MSP in fulfillment of the SOW requirements whose terms and conditions MSP and You may be legally bound.
Your right to use the Third-Party Services is subject to Your Agreement with us, and to Your understanding of, compliance with and consent to these Terms and conditions of any Third-Party agreements, which MSP does not have authority to vary, alter or amend.
Therefore, MSP may utilize a Third-Party Service Provider in its discretion to provide the Services in accordance with these Terms. MSP will use reasonable efforts to assign, transfer and facilitate all warranties (if any) for the Third-Party Service Provider to You. The Third-Party Provider may require the MSP to sign a contract with the Third-Party Provider for its services (“Third-Party Contract”) and the terms of the Third-Party Contract may require certain conditions and requirements upon You. Access to the terms and conditions of any such Third-Party Contract(s) will be provided to You or attached to the SOW which identifies the Third-Party Service Provider. You hereby agree to review all Third-Party Terms and Conditions, and consent to those Third-Party Terms and Conditions which You have consented MSP to contract upon its behalf. Third-Party Provider terms and conditions link of PDF can be found at our website and/or SOW as applicable.
Third-Party Product Vendors- “Third-Party Product Vendors” means machinery, equipment and/or products inclusive of component parts purchased from vendors in fulfillment of the SOW requirements.Third-Party Product Vendors- “Third-Party Product Vendors” means machinery, equipment and/or products inclusive of component parts purchased from vendors in fulfillment of the SOW requirements.MSP does not own certain Third-Party Products and the use thereof is subject to certain rights and limitations of which we need to inform You. Your right to use the Third-Party Products is subject to Your Agreement with us, and to Your understanding of, compliance with and consent to these Terms and conditions of the Third-Party agreements, which MSP does not have authority to vary, alter or amend.
MSP will use reasonable efforts to assign, transfer and facilitate all warranties (if any) for the Third-Party Product Vendor to You, but will have no liability whatsoever for the quality, functionality or operability of any Third-Party Products, and MSP will not be held liable as an insurer or guarantor of the performance, downtime or usefulness of any Third-Party Product. The Third-Party Product Vendor may require the MSP to sign a contract with the Third-Party Product Vendor for its products (“Third-Party Contract”) and the terms of the Third-Party Contract may require certain conditions and requirements upon You. Access to the terms and conditions of any such Third-Party Contract(s) will be provided to You or attached to the SOW which identifies the Third-Party. You hereby agree to review all Third-Party Terms and Conditions, and consent to those Third-Party Terms and Conditions which You have consented MSP to contract upon its behalf. Third-Party Product Vendor terms and conditions link of PDF can be found at our website and/or SOW as applicable.
- Third-Party Support. If, in MSP’s discretion, a hardware or software issue requires vendor or OEM support, we may contact the vendor or OEM (as applicable) on Your behalf and pass through to You, without markup, all fees and costs incurred in that process. If such fees or costs are anticipated in advance or exceed $100, MSP will obtain Your permission before incurring such expenses on Your behalf unless exigent circumstances require otherwise.
- Subcontractors. “Subcontractors” means third-party to whom MSP contracts to provide specified services to complete the services indicated in the applicable SOW.
- Conditions of Service. Your System 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:
- 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.
- MSP’s representatives shall have, and You shall provide full access to the Network in order to affect the necessary monitoring and/or supplemental services.
- MSP reserves the right to suspend or terminate these Terms or any SOW if, in its sole discretion, conditions at the service site pose a health or safety threat to any of MSP’s representatives.
- 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.
It is the responsibility of You to promptly notify MSP of any events/incidents that could impact the services defined within these Terms and/or any supplemental service needs.
MSP shall provide services as defined in these Terms during MSP’s regular business hours, unless otherwise specified in any subsequent SOW, or other contract documents, and in accordance with MSP’s IT Service policies then in effect.
You agree that You will inform MSP, prior to, MSP making any modification, installation, or service performed on the Network by individuals not employed by MSP in order to assist MSP in providing an efficient and effective Network support response.
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.
- Service Limitations. In addition to other limitations and conditions set forth in these Terms, the following service and support limitations are expressed:
- Cost of consumables, replacement parts, hardware, software, network upgrades and associated services are outside the scope of this Agreement. MSP will provide consultative specification, sourcing guidance and/or Time and Material/Project offerings.
- Any unauthorized changes made to the network without MSP’s written consent which causes issues or failures to the network, are beyond the responsibility of MSP and You will be billed the full cost to restore the network to its original state.
- Onboarding Process. You acknowledge and agree that MSP will have no responsibility for any deficiencies in the current operating systems and infrastructure until the MSP has had a reasonable opportunity to conduct a review the current system and to provide You with its recommendations and You have accepted and implemented same.
- Offboarding Process. In the event of termination of Services by either party, MSP will make reasonable accommodations to transfer Your account to Your new managed service provider or other authorized agent (the “Onboarding Provider”). You shall indemnify and hold harmless MSP, its Contracted Subcontractors and their respective directors, officers, employees, consultants and agents for any claims or losses resulting from the activities of You or the Onboarding Provider during the transition period from MSP to the Onboarding Provider, inclusive of when You obtain access to all super administrator accounts of their infrastructure.
- Transition; Deletion of Data. In the event that you request MSP’s assistance to transition to a new service provider, MSP will provide such assistance if (i) all fees due and owing to MSP are paid to MSP in full prior to MSP providing its assistance to you, and (ii) you agree to pay MSP its then-current hourly rate for such assistance, with up-front amounts to be paid to MSP as may be required by MSP. For the purposes of clarity, it is understood and agreed that the retrieval and provision of passwords, log files, administrative server information, or conversion of data are transition services, and are subject to the preceding requirements. Unless otherwise expressly stated in a SOW, MSP will have no obligation to store or maintain any Client data in MSP’s possession or control beyond fifteen (15) calendar days following the termination of this Agreement. MSP will be held harmless for, and indemnified by you against, any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, MSP’s deletion of your data beyond the time frames described in this Section.
- End of Cloud Services. Upon the end of the Services, Customer will no longer have rights to access or use the Services, including the associated MSP Programs and Services Environments; however, at Customer’s request, and for a period of up to 60 days after the end of the applicable Services, MSP will make available Customer’s content and Customer’s Applications as existing in the Services Environment on the date of termination. At the end of such 60-day period, and except as may be required by law, MSP will delete or otherwise render inaccessible any of Customer Content and Customer Applications that remain the Services Environment.
- MISCELLANEOUS Terms and conditions, including services, are subject to change by MSP. MSP will notify You of any such changes as provided in this Agreement. You may reject such changes by delivering written notice, via email, to MSP of cancellation of the agreement within 30 days from the date of such notice. Cancellation pursuant to this paragraph shall be without penalty to You. Your continued use of MSP’s services after the 30-day notice period has expired constitutes Your acceptance of revised terms, condition and/or services.
- RESPONSE; REPORTING.
- Response. MSP warrants and represents that We will provide the Services, and respond to any notification received by Us of any error, outage, alarm or alert pertaining to the System, in the manner and within the time period(s) designated in the applicable SOW (“Response Time”), except for (i) periods of delay caused by Your Downtime (defined below), Vendor-Side Downtime (defined below) or (ii) periods in which We are required to suspend the Services to protect the security or integrity of your System or Our equipment or network, or (iii) delays caused by a force majeure event.
- Scheduled Downtime. For the purposes of this Agreement, Scheduled Downtime will mean those hours, as determined by Us which will not occur between the MSP’s normal business hours of 8:00 AM and 5:00 PM Monday through Friday without Your authorization or unless exigent circumstances exist, during which time We will perform scheduled maintenance or adjustments to Your network. We will use Our best efforts to provide You with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.
- Your Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by Your actions or omissions (“Your Downtime”).
Vendor-Side Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by third-party service providers, third-party licensors, or “upstream” service or product vendors.
You and MSP expressly agree that this paragraph is intended to be as broad as permitted by the laws of the State of [State Name] and that this paragraph shall be governed by and interpreted in accordance with the laws of the State of [State Name].
- 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 reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
- 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,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.
- Confidential Information of each Party shall include the terms and conditions of 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.
- Confidential Information (other than Client Data) shall not include any information that: (i) is or becomes generally 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.
- 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.
- 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.
- 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.
- 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.
- 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. In the event that 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.
- HIPAA. MSP agrees that, to the extent required by Legal Requirements, the services provided under this Agreement will comply in all material respects with all federal and state-mandated regulations promulgated under Title II, Subtitle F of the Health Insurance Portability and Accountability Act (Public Law 104-91) (“HIPAA”).
- Duty to Protect PHI. MSP shall protect PHI from, and shall use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 (Security Standards for the Protection of Electronic Protected Health Information) with respect to EPHI, to prevent the unauthorized Use or disclosure of PHI other than as provided for in this Contract or as required by law, for as long as the PHI is within its possession and control, even after the termination or expiration of this Contract.
- PROVISION OF MATERIALS AND SERVICES TO MSP. You agree to timely furnish, at Your own expense, all personnel, all necessary computer hardware, software and related materials and appropriate and safe workspaces for purposes of MSP or its contracted subcontractors, performing the Services. Client will also provide MSP or its contracted subcontractors, with access to all information, passwords and facilities requested by MSP that is necessary for MSP or its contracted subcontractors, to perform the Services. Access may be denied for any reason at any time, however if access to information, passwords or facilities is denied, You understand that MSP or its contracted subcontractors, may be unable to perform their duties adequately.
- RESPONSIBILITY FOR EQUIPMENT. You acknowledge that from time to time (a) MSP may identify additional items that need to be purchased by You, and (b) changes in Your system may be required in order for MSP to meet Your requirements. In connection therewith, You agree to work in good faith with MSP to effectuate such purchases or changes, and such changes shall be set forth in a Change Order under the then current SOW. In the event that 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, except that assets sold by MSP to You or procured by MSP on Your behalf shall be the sole property of You. You will take such reasonable precautions to ensure the quality, completeness and workmanship of any item or service furnished by You, and for ensuring that the materials provided to MSP or its contracted subcontractors, do not infringe or violate the rights of any third-party 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. You will maintain adequate backup for all data and other items furnished to MSP.
- CLIENT DATA RESPONSIBILITY. You 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 You to MSP.
- INTELLECTUAL PROPERTY. MSP retains all intellectual property rights in any property invented or composed in the course of 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 “Intellectual Property”. You acquire no right or interest in any such intellectual property, by virtue of this Agreement or the work performed under this Agreement.
- You may only use and disclose Intellectual Property in accordance with the terms of this Agreement and applicable SOW and/or other contract documents. MSP reserves all rights in and to the Intellectual Property not expressly granted in this Agreement. You may not disassemble or reverse engineer any Intellectual Property or decompile or otherwise attempt to derive any software source code within the Intellectual Property 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 Intellectual Property, without MSP’s prior written approval. Except as expressly authorized in these Terms or an SOW and/or other contract documents, You may not (a) distribute the Intellectual Property to any third-party (whether by rental, lease, sublicense or other transfer), or (b) operate the Intellectual Property 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 Intellectual Property - applicable installation instructions or release notes will contain the relevant details.
- License Agreements.
- License. Subject to these Terms, MSP grants You a perpetual, non-exclusive, non-transferable license to use all programming, documentation, reports, and any other product provided as part of the Services solely for Your own internal use. At all times, all software on the System must be genuine and licensed, and You agree to provide us with proof of such licensing upon our request. If MSP requires You to implement certain minimum hardware or software requirements (“Minimum Requirements”), You agree to do so as an ongoing requirement of MSP providing our Services to You.
- Software Installation or Replication. If MSP is required to install or replicate Your software as part of the Services, You will independently verify that all such software is properly licensed. Your act of providing any software to MSP will be deemed Your affirmative acknowledgement to MSP that You have a valid license that permits MSP to perform the Services related thereto. In addition, You will retain the duty and obligation to monitor Your equipment for the installation of unlicensed software unless MSP in a written statement of work (“SOW”) expressly agrees to conduct such monitoring.
- Pre-Existing License Agreements. Any software product provided to You by MSP as a reseller for a third-party, which is licensed to You under a separate software license agreement with such third-party, will continue to be governed by the third-party license agreement.
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 in order 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.
- Third-Party Products. Unless otherwise stated in a SOW, all hardware, software, peripherals or accessories purchased through MSP (“Third-Party Products”) are nonrefundable once the applicable SOW is placed in our queue for delivery. Unless otherwise expressly stated in a SOW, all Third-Party Products are provided “as is” and without any warranty whatsoever as between MSP and You (including but not limited to implied warranties).
- WORKING ENVIRONMENT. You shall provide a suitable working environment for any Equipment located at Your facility. Such environment includes, but is not limited to the appropriate temperature, static electricity and humidity controls and properly conditioned electrical supply for each piece of Equipment. You shall bear the risk of loss of any Equipment located at Client’s facility.
- MSP’S EMPLOYEE’S, AGENTS OR SUBCONTRACTORS. You acknowledge that MSP has incurred substantial recruitment, screening, training, and administrative expenses with respect to its agents, including its employees, vendors and independent subcontractors. From the Effective Date of the last SOW and up to one (1) calendar year after the date of termination of any SOW, You shall not hire or contract directly or indirectly with any of the MSP’s employees, agents or subcontractors who have communicated with and/or worked on any Service for You. You and MSP mutually acknowledge and agree that it would be impractical and extremely difficult to ascertain the amount of monetary damages that would be caused by a breach by You of this provision. Therefore, You and MSP mutually agree that in the event of a breach by You in any way of this provision, You shall pay to MSP as liquidated damages, an amount equal to One Hundred Fifty Thousand Dollars ($150,000.00). this amount is an effort by both parties to properly and reasonably assess the damages that MSP would suffer as a direct result of a breach by You, taking into account the following facts and circumstances: (a) an average employee working for MSP will generate significant net revenue for the MSP and remain employed by the MSP for an extended period of time; (b) MSP will lose significant revenue and incur significant costs in connection with attempting to replace such employee; (c) there is no guarantee that such employee can be replaced; and (d) accurately assessing the value of such employee to the MSP upon such breach is virtually impossible. In light of these circumstances, You and MSP mutually agree that this is liquidated damages provision represents reasonable compensation to MSP for the losses that it would incur due to any such breach. You and MSP further acknowledge and agree that nothing in this paragraph shall limit MSP’s rights to obtain injunctive relief or any other damages including, but not limited to punitive, consequential, special, or any other damages, as may be appropriate in connection with Your breach of this section.
WARRANTY. MSP warrants that it or its contracted subcontractors, will perform the services substantially in accordance with the specifications set forth whether under these Terms, SOW, and/or other contract documents 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 Your 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 You to MSP hereunder, if any, allocable to such nonconforming Services.
Notwithstanding any provision to the contrary in these Terms, any warranty offered and provided directly by MSP product shall be deemed null and void if the applicable product is (i) altered, modified or repaired by persons other than MSP, including, without limitation, the installation of any attachments, features, or devices not supplied or approved by MSP (ii) misused, abused, or not operated in accordance with the specifications of MSP or the applicable manufacturer or creator of the hardware or product, or, (iii) subjected to improper site preparation or maintenance by persons other than MSP or persons approved or designated by MSP.
Notwithstanding the above, MSP does not warrant its products or services beyond a reasonable standard or skill consistent with industry standards. MSP does not guarantee or promise any cost savings, profits, or returns on investment.
- SOFTWARE HARDWARE & SECURITY. You understand and agree that data loss or network failures may occur, whether or not foreseeable. In order to reduce the likelihood of a network failure You must maintain proper security for Your computer and information system including software and hardware updates. You will adhere to 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.
- CLIENT CYBER SECURITY. It is understood that within the Services provided it is not the intent, nor does the MSP provide any type of internet security monitoring, cyber security monitoring, cyber terrorism monitoring, or other cyber threats for You unless otherwise specified in the Scope of Work or other contract documents. As cyber threats are always evolving it is strongly recommended that You engage the services of a cyber protection third-party vendor to monitor the cyber controls and cyber activities in Your System. In no event, including the negligent act or omission on its part, shall MSP, whether under these Terms, a SOW, other contract documents 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), 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 part, 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 Your data is breached because of the distribution of unsolicited email, direct mail, facsimiles, telemarketing or because of the collection of information by means of any form of electronic malware, wiretapping, bugging, video cameras or identification tags.
- 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.
- 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 INTORELEASE 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 INTOTHESE 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.
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.
- 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 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: (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 as a result of the wrongful act of MSP.
- SUBCONTRACTOR INSRUANCE. The MSP must require its Subcontractors to obtain, maintain and keep in force during the time they are engaged in providing products and services to the ENT Surgery Group adequate licensing and insurance coverage consistent with state and federal laws.
- YOUR INSURANCE.
- 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.
- 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.
- 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.
DISCLAIMERS. The express remedies set forth in these Terms will constitute Your 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.
EXCEPT FOR THE WARRANTIES MADE BY MSP IN SECTION 11, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CLIENT, 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 OF YOUR REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT YOU MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO YOU, 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 these Terms in any way whatsoever.
- SEVERABILITY. If any provision of these Terms 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 these Terms shall not render invalid the remainder of the Terms.
- AMENDMENT. These Terms may not be amended except by a writing executed by an authorized individual of the MSP.
- RELATIONSHIP. The Parties are independent parties; and these Terms do not make the Parties principal and agent, partners, employer and employee; nor does it create a joint venture. It is further understood that there is no relationship, including but not limited to a partnership, joint venture, subcontractor or other commission-based relationship, between any party that referred MSP or Client to the other party to these Terms.
- LAW. These Terms shall be governed by and construed in accordance with the laws of the State of Pennsylvania without reference to principles of conflicts of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Pennsylvania, Cumberland County.
- 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. Neither party will be liable to the other party for delays or failures to perform its obligations under this Agreement or any SOW because of circumstances beyond such party’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, pandemic, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.
- DATA ACCESS/STORAGE. Depending on the Service provided, a portion of Your data may occasionally be accessed or stored on secure servers located outside of the United States. You agree to notify MSP if Your company requires MSP to modify Our standard access or storage procedures.
- ASSIGNMENT. You may not assign Your rights or obligations under these Terms without MSP’s prior written consent which shall not be unreasonably withheld.
COUNTERPART AND ELECTRONIC SIGNATURES. These Terms must be executed as part of Your SOW and by agreeing to the SOW and initializing the SOW that you have read and understood these Terms, these Terms are now part of, and integrated into, the SOW, and 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. Your electronic signature on the SOW shall have the same validity and effect as a signature affixed by Your hand.
ENTIRE AGREEMENT. These Terms, the SOW, and any subsequent SOW’s constitute the entire agreement by and between the Parties regarding the subject matter contained therein and supersedes all prior and contemporaneous undertakings and agreements of the Parties, whether written or oral, with respect to such subject matter. Any and all other agreements between the Parties is subject to paragraph 1 above.