Master Services Agreement
Table of Contents
1.1. Scope. This Agreement states the terms and conditions pursuant to which EITS will provide the Products and Services to Customer. This Agreement is subject to and may be modified by any Statement of Work and any Change Requests which are mutually agreed by EITS and Customer. The MSA and each Statement of Work or Change Request will be interpreted as a single agreement, independent of each other, so all of the provisions are given as full effect as possible. In no event will the description of Services under any Statement of Work be deemed by implication or otherwise to exclude any Services described in this MSA.
1.2. Statement of Work. EITS will provide Customer the Products and Services as set forth in the Statement of Work for such Products and Services. The commencement date of work by EITS, renewal terms and other relevant information regarding the Products and Services provided will be set forth in the applicable Statement of Work.
1.3. Customer Responsibilities. The Products and Services do not include Internet access services or telecommunications transport circuits which are Customer’s responsibility. Customer is responsible for Customer’s own data security policies, user requirements, access and use policies and security or other policy violation response procedures. To the extent Customer requires EITS to comply with its data security policies, user requirements, access and use policies, or any other policy or rule, Customer must notify EITS in writing of such requirements prior to the execution of any Statement of Work. If EITS agrees, Customer will be solely responsible for providing any necessary training to EITS’ staff as required based upon the nature of the project. Customer understands and agrees this requirement may affect the cost and timeline of the project. To the extent Customer desires or needs Products and Services not provided by EITS pursuant to a Statement of Work, Customer is responsible for obtaining such Products and Services from a third party unless and until mutually agreed to be provided by EITS pursuant to a Statement of Work. Customer is responsible for maintaining current backups and protection of all Customer data.
- “Change Request” means a written request to revise Statement of Work or agreed upon terms.
- “Confidential Information” shall include, without limitation, technical data, software, drawings, manuals, specifications, financial information, trade secrets pertaining to process or products, personal contact or personal identifiable information, prospective customer information or lists, pricing and marketing information, and research information or developments.
- “Hardware” means physical equipment including, but not limited to, computers, servers, data storage devices, and network switches, firewalls, routers, or other physical equipment.
- “Products and Services” means one or more of the following products or services purchased by Customer as set forth in a Statement of Work: Consulting Services, Staffing Services, Support Services, Professional Services, Hardware and Software.
- “Professional Services” means implementation, training, installation, migration and restoration services and other professional services provided by EITS to Customer.
- “Representatives” means affiliates, directors, members, managers, officers, employees, independent contractors or agents.
- “Statement of Work” means a written statement of work signed by the Customer and EITS pursuant to which EITS provides Products and Services to Customer.
- “Support Services” means maintenance and technical support services provided by or on behalf of EITS.
5. TERMS OF PURCHASE
5.1. Invoices. EITS shall invoice Customer as detailed for amounts set forth in the applicable Statement of Work. Customer shall render payment in full to EITS within thirty (30) days of the invoice date (unless otherwise agreed to in a separate statement of work).
5.2. Nonpayment. For invoices not paid within thirty (30) days of the invoice date, EITS reserves the right to charge Customer a late penalty charge of two percent (2.0%) per month applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. In addition, EITS, without waiving any other rights or remedies to which it may be entitled, shall have the right to suspect or terminate the Statement of Work until such payment is received and may decide not to accept additional orders from Customer and/or seek collection of all amounts due, including reasonable legal fees and costs of collections. EITS shall have no liability to Customer for any such suspension or termination of the Statement of Work, or non-acceptance of orders.
5.3. FOB Shipping. Hardware and support purchases shall be FOB shipping point and will be invoiced as goods leave the supplier origin or FOB Destination and will be invoiced when received at customer premise.
5.4. Purchase Orders. Customer must submit purchase orders prior to EITS rendering services or EITS placing orders through distributors. EITS does not accept, and hereby expressly rejects, any additional or inconsistent terms that may be included on Customer’s purchase orders or otherwise submitted or referenced by Customer unless such terms are mutually agreed in writing by the parties as an amendment to this Agreement, Statement of Work or Change Request.
5.5. Prices. The prices charged for Services purchased under this MSA will be EITS’ “then-current” charges for such services in each geographic region or as quoted by EITS. EITS reserves the right to revise pricing if prices for Services are based upon written assumptions and those assumptions are determined inaccurate. If Customer and EITs are not able to reach agreement on the revised pricing, Customer or EITS may terminate the applicable Service Agreement. All prices are exclusive of all applicable country, provincial, state and local sales, use, value added, excise, privilege, franchise and similar taxes. If Services are being performed on a time and materials basis, any estimates provided by EITS are for planning purposes only. Any required deposits are non-refundable.
5.6. Taxes. Customer shall be responsible for all applicable taxes and fees assessed or imposed upon the Services provided or the amounts charged under this MSA, including any sales, use, excise, value-added, or comparable taxes, but excluding taxes related to EITS’ net assets or net income or for which Customer has provided a valid resale or exemption certificate. Should any payments to EITS become subject to withholding tax, then Customer shall deduct these taxes from the amount owed to EITS and pay the taxes to the appropriate tax authority in accordance with the laws thereof. Customer shall promptly provide EITS with receipts or other applicable evidence of substantiating the payments as required under the laws of the applicable taxing authority. EITS shall not be liable for any withholding tax, penalty, or interest due as a result of Customer’s failure to withhold any applicable tax.
6.1. Any notice or other communication required or permitted under this Agreement shall be in writing and either delivered personally, sent by mail, or emailed to:
Enterprise IT Security
525 North Tryon St.
Charlotte, NC 28202
7. INDEMNIFICATION / LIMITATION OF LIABILITY
7.1. Customer agrees to defend, indemnify and hold harmless EITS, its subsidiaries, affiliates and other related companies, and its owners, members, partners, directors, officers, employees, contractors and agents from and against any and all liabilities, penalties, claims, demands, suits, and cause of action of any nature whatsoever, whether groundless or otherwise, and any and all damages, costs and expenses sustained or incurred including cost of defense, settlement and reasonable attorneys’ fees, asserted by or on behalf of any person or entity relating to, arising out of or concerning (i) breach of this Agreement by Customer, (ii) a negligent act or omission or fraud of Customer, its agents, representatives, or employees, or (iii) a claim of infringement of the Customer Materials.
8. CONFIDENTIAL INFORMATION
9. DISCLAIMERS AND LIMITATIONS OF LIABILITY
9.1. Assumption of Responsibility. Customer assumes all responsibility for the selection of, use of, and results obtained from the Products and Services. While EITS may make recommendations to Customer, Customer has the sole final authority for the Products and Services set forth in any Statement of Work.
9.2. Disclaimer. Products and Services are not warranted to operate uninterrupted or error free. New security threats are constantly evolving. EITS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, OTHER THAN THE WARRANTY PROVIDED IN SECTION 3 OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT AS EXPRESSLY DESCRIBED ELSEWHERE IN THIS AGREEMENT OR THE APPLICABLE STATEMENT OF WORK, CUSTOMER ASSUMES ALL RISK OF LOSS OR DAMAGE ASSOCIATED WITH THE SERVICES, INCLUDING ANY LOSS OR DAMAGE TO DATA.