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1. SCOPE OF TERMS. These Terms serves as a master Terms and applies to Client's purchases from MSP, of services (“Services”), as well as licenses for software, hardware, support and maintenance services, and/or subscription services (collectively, "Product").  Client hereby engages and retains MSP to render Services or provide Product, as more particularly set forth 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 in these Terms. No Product or Services will be provided under these Terms alone, but may require the execution of a written or electronic SOW form, or other mutually acceptable Work Order documentation, which contains terms relating to these Terms, each of which must be executed by both Parties and, upon such execution, is deemed incorporated in these Terms for all purposes.  The Parties hereby further agree that the Parties may execute multiple Work Orders and SOWs under these Terms.  In the event of any conflict between the terms of the Statement of Work and those of these Terms, the terms of the Statement of Work will prevail over these Terms.

 
2. GENERAL REQUIREMENTS.
 
2.1. 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 and further identified in the 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 authorize such activity. MSP will not be held responsible or liable for changes made by the client without authorization.
 
2.2.  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. Transfer will require that Client’s account be fully paid at time of transfer inclusive of any offboarding charges.
 
2.3. Maintenance; Updates.  If patches and other software-related maintenance updates (“Updates”) are provided under a SOW, we will install the Updates only if we have determined, in our 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.  We 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.
 
2.4. Third-Party Service Providers.  “Third-Party Service Providers” means services provided by other than the MSP in fulfillment of the SOW requirements whose terms and conditions MSP and Client may be legally bound.
 
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 Terms with us, and to your understanding of, compliance with and consent to the terms and conditions of the Third-Party Terms, which we do 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 the Terms.  MSP shall not, however, subcontract any Services to a third-party without the prior written consent of Client.  If Client so consents, MSP will use reasonable efforts to assign, transfer and facilitate all warranties (if any) for the Third-Party Service Provider to Client, but will have no liability whatsoever for the quality, functionality or operability of any Third-Party Products or Services, and MSP will not be held liable as an insurer or guarantor of the performance, downtime of usefulness of any Third-Party Provider.  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 Client.  The terms and conditions of any such Third-Party Contract(s) will be provided to the Client or attached to the Scope of Work which identifies the Third-Party Service Provider and the associated terms and conditions.  Client hereby agrees to review all Third-Party Terms and Conditions, and consents to those Third-Party Terms and Conditions which Client has consented MSP to contract upon its behalf.  Third-Party Provider company links and information on terms and conditions can be found at our website and/or SOW as applicable.
 
2.5. Third-Party Product Vendors. “Third-Party Product Vendors” means machinery and equipment inclusive of component parts purchased from vendors in fulfillment of the SOW requirements. 
 
2.6. 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, we will obtain your permission before incurring such expenses on your behalf unless exigent circumstances require otherwise.
 
2.7. Subcontractors.  “Subcontractors” means third-party to whom MSP contracts to provide specified services to complete the services indicated in the applicable SOW.
 
2.8. Advice; Instructions.  From time to time, we may provide you with specific advice and directions related to our provision of the Services or the maintenance or administration of the System.  (For example, our advice or directions may include increasing the System’s server or hard drive capacity or replacing obsolete equipment.) You agree to promptly follow and implement any directions we provide to you related to the Services which, depending on the situation, may require you to make additional purchases or investments in the System or the environment in which the System is maintained, at your sole cost.  We will not be responsible for any problems or issues (such as System downtime or security-related issues) caused by your failure to promptly follow our advice or directions.  If your failure to follow or implement our advice renders part or all of the Services economically or technically unreasonable to provide in our discretion, then we may terminate the applicable SOW for cause by providing notice of termination to you.  Unless specifically and expressly stated in a SOW, any services required to remediate issues caused by your failure to follow MSP’s advice or directions, or your unauthorized modification of the System, as well as any services required to bring the System up to or maintain the Minimum Requirements, are not covered under any SOW and will be out-of-scope.
 
3. TERM AND TERMINATION. These Terms will begin on the Effective Date and will continue until each Order expires or is terminated. MSP may: (a) terminate a specific Order if Client fails to pay any applicable fees due for that Order within 30 days after receipt of written notice from MSP of non-payment; and/or (b) terminate these Terms or an Order if Client commits any other material breach of these Terms and fails to cure such breach within fifteen (15) days after receipt of written notice from MSP.  If an Order for Services is terminated, Client will promptly pay MSP for Services rendered, and expenses incurred through the termination date.  
 
Client may (a) terminate these Terms or a specific Work Order if MSP commits any material breach of these Terms and fails to cure such breach within fifteen (15) days after receipt of written notice from Client; and/or (b) terminate these Terms for any reason upon thirty (30) days’ written notice to MSP.  
 
4. PAYMENT. Client will pay MSP all fees due upon receipt of an invoice specifying the amounts due ("Fees").  All Fees payable under these Terms are exclusive of sales, use, excise, and any other applicable transaction taxes, which Client 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. Client shall pay all expenses, including actual attorneys’ fees, incurred by MSP or its representatives in enforcing its rights under these Terms, provided that MSP is successful on the merits.  Client’s obligation to pay undisputed amounts due for Services and MSP’s right to all such amounts are absolute and unconditional. Client is not entitled to setoff of such amounts.  All Fees will be detailed in a Work Order. Unless otherwise stated in a SOW, Client agrees to pay or reimburse MSP for all actual, necessary, and reasonable expenses incurred by MSP in performance of such SOW, which are capable of verification by receipt.  MSP will submit invoices to Client for such fees and expenses either upon completion of the Services, or at stated intervals, in accordance with the applicable Statement of Work.
 
5. CONFIDENTIALITY AND NON-DISCLOSURE. 
 
5.1. 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.
 
5.2. Confidential Information of Client shall include any personally identifiable information or protected health information of Client’s employees, Client’s customers, and Client Data. Client acknowledges and agrees that these Terms does not constitute a Business Associates Terms (“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 Terms in addition to these Terms may be necessary to provide the Services hereunder.  Client 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, Client hereby agrees to defend, indemnify and hold harmless the MSP and any affiliated company, and their respective present and former shareholders, officers, directors and employees and their attorneys and agents, and their 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 the Client to comply with the terms and conditions of 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.
 
5.3. Confidential Information of MSP shall include the Product(s) or Service(s), the terms and conditions of these Terms and the SOW, and documentation related to the Products and/or Services. 
 
5.4. Confidential Information of each Party shall include the terms and conditions of these Terms and all SOW’s, as well as business and marketing plans, technology and technical information, product plans and designs, trade secrets, and business processes disclosed by such Party. 
 
5.5. 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. 
 
5.6.  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 these Terms 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, contractors and agents who need such access for purposes consistent with these Terms. 
 
5.7. Non-disclosure.  Neither Party shall disclose the terms of these Terms, any SOW to any third-party other than its affiliates, legal counsel, and accountants without the other Party’s prior written consent. 
 
5.8. 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. 
 
5.9. 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. 
 
5.10. 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 (such as archived computer records). 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, and which protections and provisions shall survive the termination of these Terms.
 
6. PROVISION OF MATERIALS AND SERVICES TO MSP. Client agrees to timely furnish, at its own expense, all personnel, all necessary computer hardware, software and related materials and appropriate and safe work spaces 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, Client understands that the MSP or its contracted subcontractors, may be unable to perform their duties adequately.
 
7. WORKING ENVIRONMENT. Client shall provide a suitable working environment for any Equipment located at Client’s 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.  Client shall bear the risk of loss of any Equipment located at Client’s facility. 
 
8. SERVICE PROVIDER’S EMPLOYEE’S.  Client acknowledges that Service Provider has incurred substantial recruitment, screening, training, and administrative expenses with respect to its employees.  From the Effective Date of these Terms and up to one (1) calendar year after the date of termination of these Terms, Client shall not hire or contract directly or indirectly with any of the Service Provider’s employees.  Client and Service Provider 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 Client of this provision.  Therefore, Client and Service Provider mutually agree that in the event of a breach by Client in any way of this provision, client shall pay to Service Provider 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 Service Provider would suffer as a direct result of a breach by Client, taking into account the following facts and circumstances: (a) an average employee working for Service Provider will generate significant net revenue for the Service Provider and remain employed by the Service Provider for an extended period of time; (b) Service Provider 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 Service Provider upon such breach is virtually impossible.  In light of these circumstances, Client and Service Provider mutually agree that this is liquidated damages provision represents reasonable compensation to Service Provider for the losses that it would incur due to any such breach.  Client and Service Provider further acknowledge and agree that nothing in this paragraph shall limit Service Provider’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 Client’s breach of this section. 
 
9. RESPONSIBILITY FOR EQUIPMENT. Client acknowledges that from time to time (a) MSP may identify additional items that need to be purchased by Client, and (b) changes in Client’s systems may be required in order for MSP to meet Client’s requirements.  In connection therewith, Client agrees 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 Client or procured by MSP on Client’s behalf shall be the sole property of Client.  Client will take such reasonable precautions to ensure the quality, completeness and workmanship of any item or service furnished by it, and for ensuring that the materials provided to MSP or its contracted subcontractors, do not infringe or violate the rights of any third-party.  Client will maintain adequate backup for all data and other items furnished to MSP.
 
10. CLIENT DATA OWNERSHIP AND RESPONSIBILITY. Client 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 Client to MSP.
 
11. INTELLECTUAL PROPERTY. MSP retains all intellectual property rights in any property invented or composed in the course of or incident to the performance of these Terms, as well as any software, materials, or methods created prior to or after conclusion of any work. Client acquires no right or interest in any such intellectual property, by virtue of these Terms or the work performed under these Terms.
 
11.1. Client may only use and disclose Product in accordance with the terms of these Terms and applicable SOW.  MSP reserves all rights in and to the Product not expressly granted in these Terms.  Client may not disassemble or reverse engineer any software Product or decompile or otherwise attempt to derive any software Product's source code from executable code, except to the extent expressly permitted by applicable law despite this limitation or provide a third-party with the results of any functional evaluation, or benchmarking or performance tests on the Products, without MSP’s prior written approval.  Except as expressly authorized in these Terms or an SOW, Client may not (a) distribute the Product to any third-party (whether by rental, lease, sublicense or other transfer), or (b) operate the Product in an outsourcing or MSP business to process the data of third parties.  Additional usage restrictions may apply to certain third-party files or programs embedded in the Product - applicable installation instructions or release notes will contain the relevant details.
 
11.2. License Terms.
 
(a) License. Subject to the terms of these Terms, MSP grants Client a perpetual, non-exclusive, non-transferable license to use and modify all programming, documentation, reports, and any other product provided as part of the Services solely for its own internal use.  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 we require you to implement certain minimum hardware or software requirements (“Minimum Requirements”), you agree to do so as an ongoing requirement of us providing our Services to you.
 
(b) Software Installation or Replication.  If MSP is required to install or replicate Client software as part of the Services, Client will independently verify that all such software is properly licensed.  Client’s act of providing any software to MSP will be deemed Client’s affirmative acknowledgement to MSP that Client has a valid license that permits MSP to perform the Services related thereto.  In addition, Client will retain the duty and obligation to monitor Client’s equipment for the installation of unlicensed software unless MSP in a written statement of work (“SOW”) expressly agrees to conduct such monitoring.
 
(c) Pre-Existing License Terms.  Any software product provided to Client by MSP as a reseller for a third-party, which is licensed to Client under a separate software license Terms with such third-party, will continue to be governed by the third-party license Terms.
 
(d) EULA.  Portions of the Services may require you to accept the terms of one or more third-party end user license Terms (“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, we are required to comply with a third-party EULA and the third-party EULA is modified or amended, we reserve 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. 
 
11.3. 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.  We will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third-Party Products to you, but will have no liability whatsoever for the quality, functionality or operability of any Third-Party Products, and we will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Third-Party Products.  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).
 
12. 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, 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 Client’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 Client to MSP hereunder, if any, allocable to such nonconforming Services.
 
12.1. 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. 
 
13. SOFTWARE HARDWARE & SECURITY. Client understands and agrees that data loss or network failures may occur, whether or not foreseeable.  In order to reduce the likelihood of a network failure the Client must maintain proper security for its computer and information system including software and hardware updates.  Client will adhere to software and hardware updates and maintain specific security standards, policies, procedures set forth and recommended by MSP.
 
14. CLIENT CYBER SECURITY.  It is understood that the services provided under this MSA are limited to the Scope of Work as detailed in Paragraph 1, or any subsequent Scope of Work. Unless otherwise specified in the Scope of Work, 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 the Client.  As cyber threats are always evolving it is strongly recommended that the Client engage the services of a cyber protection third-party vendor to monitor the cyber controls and cyber activities in the system.  Upon request MSP may provide to Client several companies that provide cyber protection. MSP can assist in evaluating Clients specific needs, but it is understood and agreed that MSP does not offer nor provide cyber security under these Terms.
 
15. TERRORISM.  In no event, including the negligent act or omission on its part, shall MSP, 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 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.
 
16. TELEMARKETING & UNSOLICITED EMAILS.  In no event, including the negligent act or omission on its 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 the Client’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.
 
17. EXTRAORDINARY EVENTS.  In no event, including the negligent act or omission on its 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 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.
 
18. RELEASE WITH LIMITATION OF LIABILITY.  THIS PARAGRAPH LIMITS THE LIABILITIES ARISING UNDER THESE TERMS OR ANY SOW AND IS A BARGAINED-FOR AND MATERIAL PART OF THESE TERMS.  YOU ACKNOWLEDGE AND AGREE THAT MSP WOULD NOT ENTER INTO THESE TERMS UNLESS IT COULD RELY ON THE LIMITATIONS DESCRIBED IN THIS PARAGRAPH. CLIENT AND ANY OF THEIR 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 THE MSP AND ANY OF THEIR AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, SHAREHOLDERS, NOMINEES, CONSULTANTS, 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. UNDER NO CIRCUMSTANCES SHALL MSP’S AGGREGATE LIABILITY ARISING FROM OR OUT OF OR RELATING TO THESE TERMS EXCEED THE FEES PAID UNDER THESE TERMS FOR THE PREVIOUS TWELVE (12) MONTHS.  MSP SHALL NOT BE LIABLE TO CLIENT FOR ANY DELAY IN DELIVERY OR PERFORMANCE, OR FAILURE TO DELIVER OR PERFORM AT OR WITHIN THE DEADLINES SET FORTH IN THESE TERMS.
 
19. 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, 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.
 
20. RESPONSE; REPORTING.
 
20.1. 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 an applicable SOW (“Response Time”), except for (i) those periods of time covered under the Onboarding Exemption (defined below), or (ii) periods of delay caused by Client-Side Downtime (defined below), Vendor-Side Downtime (defined below) or (iii) 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 (iv) delays caused by a force majeure event.
 
20.2. Scheduled Downtime.  For the purposes of these Terms, Scheduled Downtime will mean those hours, as determined by us but which will not occur between the hours of 9:00 AM and 5:00 PM EST (or EDT, as applicable), Monday through Friday without your authorization or unless exigent circumstances exist, during which time we will perform scheduled maintenance or adjustments to its network.  We will use our best efforts to provide you with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.
 
20.3. Client-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 your actions or omissions (“Client-Side Downtime”).
 
20.4. 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.
 
20.5. Onboarding.  For the purposes of these Terms, “Onboarding” will mean those hours or days, as determined by the MSP during which time MSP will conduct the onboarding of your System, or portions thereof.  We will use our best efforts to provide you with at least twenty-four (24) hours of notice prior to scheduling the onboarding.
 
20.6. Onboarding Exemption.  It is agreed that prior to and during the onboarding period, MSP will not be responsible under any circumstances for any delays or deficiencies, any viruses, breaches, hidden malware, or other cyber attacks on the System, MSP will not assume any responsibility where the System is, or has been, compromised and Client shall not file any such claim against MSP or its insurance provider and Client shall indemnify MSP if any claims are filed by third parties whose Material is compromised, including HIPAA claims.
 
MSP expressly agrees that this paragraph is intended to be as broad as permitted by the laws of the State of Michigan and that this paragraph shall be governed by and interpreted in accordance with the laws of the State of Michigan.
 
20.7. Remedies; Limitations.  Except for the Onboarding Exemption, if we fail to meet our service level commitment in a given calendar month and if, under such circumstances, our failure is not due to your activities, omissions, or inactivity, then upon receiving your written request for credit, we will issue you a pro-rated credit in an amount equal to the period of time of the outage and/or service failure.  All requests for credit must be made by you no later than forty-five (45) days after you either (i) report the outage or service failure to us, or (ii) if applicable, receive a monthly report showing the outage and/or failure.  The remedies contained in this paragraph and in Section 12 are in lieu of (and are to the exclusion of) any and all other remedies that might otherwise be available to you for our failure to meet any service level commitment during the term of these Terms.
 
21. SERVICE ASSUMPTION LIABILITY LIMITATION. It is mutually agreed that MSP will have no responsibility for any deficiencies in the current operating systems until the MSP has had a reasonable opportunity to conduct a review the current system and to provide Client with their recommendations.
 
22. PROVIDER INSURANCE.  MSP agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by these Terms and by law.  Without limiting the foregoing, to the extent these Terms 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 these Terms: (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 owned, 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).
 
23. CLIENT INSURANCE.
 
23.1. Commercial Property Insurance. Client shall secure at its own cost and expense Property Insurance for the equipment that is part of the provisions of the service Terms. 
  
23.2. Cyber Insurance.  Client shall secure and maintain for the duration of the contract Cyber Liability Insurance to insure Client’s cyber exposures. Specific limits and coverages should be evaluated by a qualified insurance broker or risk manager to determine your specific coverage and policy limit requirements. A minimal $1,000,000 Policy per occurrence/aggregate limit is required.
 
23.3. Mutual Waiver of Subrogation.  TO THE EXTENT PERMITTED BY LAW, EACH PARTY WAIVES ALL RIGHTS AGAINST THE OTHER FOR RECOVERY OF DAMAGES TO THE EXTENT THESE DAMAGES ARE COVERED BY THE WORKERS COMPENSATION (TO THE EXTENT PERMITTED BY LAW) AND EMPLOYERS PROFESSIONAL LIABILITY GENERAL LIABILITY.  PROPERTY INSURANCE, COMMERCIAL UMBRELLA/EXCESS, CYBER OR OTHER COMMERCIAL LIABILITY INSURANCE OBTAINED BY EITHER PARTY. CLIENT WILL NOT HOLD THE MSP ITS SUBCONTRACTORS AND/OR THIRD-PARTY SERVICE PROVIDERS RESPONSIBLE FOR SUCH LOSSES AND WILL CONFIRM THAT THE CLIENTS INSURANCE POLICIES REFERENCED ABOVE PROVIDE FOR THE WAIVER OF SUBROGATION INCLUDED IN THE MASTER SERVICE TERMS.
 
24. DISCLAIMERS. The express remedies set forth in these Terms will constitute Client’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.
 
EXCEPT FOR THE WARRANTIES MADE BY MSP IN SECTION 12, 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 CLIENT REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CLIENT 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 CLIENT, 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. 
 
25. 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 these Terms.
 
26. AMENDMENT.  These Terms may not be amended except by a writing executed by an authorized individual of the MSP.
 
27. RELATIONSHIP.  The Parties are independent parties; and these Terms does 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, sub-contractor or other commission-based relationship, between any party that referred MSP or Client to the other party to these Terms.
 
28. LAW. These Terms shall be governed by and construed in accordance with the laws of the State of Michigan without reference to principles of conflicts of laws.  The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Michigan.
 
29. 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.
 
30. FORCE MAJEURE.  Neither party will be liable to the other party for delays or failures to perform its obligations under these Terms 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, 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.
 
31. 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 us if your company requires us to modify our standard access or storage procedures.
 
32. ASSIGNMENT. Client may not assign its rights or obligations under these Terms without MSP’s prior written consent which shall not be unreasonably withheld.
 
33. COUNTERPART AND ELECTRONIC SIGNATURES.  These Terms may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. The Client’s electronic signature of these Terms shall have the same validity and effect as a signature affixed by the Client's hand. 
 
34. ENTIRE TERMS. These Terms constitutes the entire Terms by and between the Parties regarding the subject matter contained herein and supersedes all prior and contemporaneous undertakings and Terms of the Parties, whether written or oral, with respect to such subject matter.

Last Modified: 03/19/2021 

 
 
 
 
 
 
 

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