Master Services Agreement
THIS MASTER SERVICES AGREEMENT (“MSA”) is entered into by you (“Customer”) as evidenced by your use of the Services (defined below). “Customer” shall include Customer’s corporate subsidiaries, as well as corporate parents, affiliates, and other related entities (Collectively, “Affiliates”) approved by EITS to receive Services under this MSA. For purposes of this MSA the term “EITS” shall mean Enterprise IT Security, LLC. EITS and Customer agree to the following terms and conditions.
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.
EITS warrants that the services will be performed in a professional and workman-like manner using generally accepted industry standards and practices. Customer’s exclusive remedy for breach of this warranty shall be timely re-performance of the work by EITS such that the warranty is met. Warranty on Services will be provided for thirty (30) days convening the day after Customer executes the acceptance notice therefore. This warranty shall apply only to the professional services provided to implement and execute the work detailed in the corresponding Statement of Work. Products and Services are not warranted to operate uninterrupted or error free. New security threats are constantly evolving. EITS will make any necessary corrections resulting from incorrect installation at no additional cost to Customer. EITS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES 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.
4.1. EITS agrees to maintain comprehensive general liability insurance, naming Customer as an additional insured, which shall include bodily injury, property damage, and other losses caused or arising out from error or omissions by Contractor or other agents. EITS agrees to maintain Worker’s Compensation at statutory limits in North Carolina and South Carolina. A Certificate of Insurance indicating said coverage shall be provided to Customer upon written request.
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
15105 John J Delaney Drive, Suite D-32
Charlotte, NC 28277
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.
7.2. Except for any obligations of EITS to indemnify Customer, or otherwise, in no event shall EITS or any of its directors, officers, employees, agents, suppliers, subsidiaries or affiliated entities be liable, whether based on contract, tort under any warranty or otherwise for any indirect, special, incidental or consequential losses or damages arising out of or related to this agreement, the services, the deliverables, or the use of the losses and damages.
with respect to EITS’s obligations to indemnify Customer, the total cumulative
liability of EITS and any EITS representative for claims of any kind whether
based on contract, tort, under any warranty or otherwise, for any loss or
damage arising out of or related to this agreement or the software, shall in no
case exceed the amount of fees paid by Customer under the applicable statement
of work from which such claim or liability arose, and Customer hereby releases
EITS and the EITS representatives from any liability in excess of such amount.
This section shall survive the termination of this agreement and shall remain
operative and in full force and effect. The limitations on liability in this
section represent a fundamental term of this agreement and neither party would
have entered this agreement without their inclusion.
8. CONFIDENTIAL INFORMATION
As used herein, “Confidential Information” means the terms and provisions of this Agreement and any related documents delivered hereunder, together with all data, reports, analyses, compilations, records, pricing and evaluation of all or any portion of the transactions contemplated by this Agreement. The parties agree to protect each other’s Confidential Information from unauthorized disclosure to any third party with the same level of effort it uses to protect its own Confidential Information and to disclose the Confidential Information only as required in the performance of this Agreement and/or Purchase Orders, or as may be required by law or otherwise, and in such case, the disclosing party shall notify the other party of such compulsory disclosure as soon as practicable thereafter. Confidential Information must be in writing or other tangible form, marked with an appropriate legend. If not in written or tangible form, it must be identified as confidential at the time of disclosure; and summarized and delivered to the other party within a reasonable time following disclosure. Confidential Information does not include information that: (i) is or becomes publicly available other than through a breach of this Agreement; or (ii) was in the possession of the receiving Party at the time of disclosure or later becomes available from a party without obligation of confidentiality; or (iii) is lawfully received by the receiving Party from a third party without breach of this Agreement, provided that the receiving Party is not obligated under separate agreement to hold such information in confidence; or (iv) is independently developed by or for the receiving party without access to confidential information, as evidenced by its records; or (v) the receiving party has received written permission from the other party to disclose; or (vi) the receiving party is required to disclose pursuant to a valid order of court or other governmental body thereof; provided, however, that the recipient of the information shall first give notice to the disclosing Party and make a reasonable effort to obtain a protective order requiring that the information and/or documents so disclosed will be used for the purposes for which the order was issued. Each party hereby agrees that all Confidential Information or proprietary rights referred to above shall remain the exclusive property of the disclosing party and shall be returned to the disclosing party promptly upon request. Each party acknowledges and agrees that it would be difficult to fully compensate the other party for damages resulting from the breach or threatened breach of the foregoing provisions and, accordingly, that the non- breaching party will be entitled to temporary and injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions to enforce such provisions. This provision with respect to injunctive relief will not, however, diminish the parties’ rights to claim and recover damages. These confidentiality provisions shall remain in effect for a period of three (3) years after the expiration or termination of this Agreement for any reason.
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.
9.3. Waiver of Damages. IN NO EVENT WILL EITS BE LIABLE FOR: (a) CLAIMS OR LIABILITIES OTHER THAN THOSE IDENTIFIED IN SECTION 3 OF THIS AGREEEMENT; OR (b) ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE TO DATA, INACCURACY OF DATA, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS OR LOSS OF GOOD WILL, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
9.4. Cap On Liability. IN NO EVENT WILL THE TOTAL LIABILITY OF EITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY STATEMENT OF WORK EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO EITS UNDER THE APPLICABLE STATEMENT OF WORK.
9.5. Acknowledgment of Limitations. THE LIMITATIONS PROVIDED FOR IN SECTION 9.3 OF THIS AGREEMENT APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, AND STATUTORY CLAIMS. CUSTOMER ACKNOWLEDGES IT UNDERSTANDS THE LEGAL AND ECONOMIC RAMIFICATIONS OF THE FOREGOING LIMITATIONS, AND THE FOREGOING LIMITATIONS ALLOCATE THE VARIOUS RISKS BETWEEN EITS AND CUSTOMER AND FORM AN ESSENTIAL PART OF THE AGREEMENT OF THE PARTIES.
9.6. Hardware. If Customer purchases any Hardware from EITS, such Hardware is provided to Customer "as is, where is." If the manufacturer provides a warranty on the Hardware, Customer shall be considered the record owner of the Hardware for purposes of such warranty, to the extent such warranty follows the Hardware. Customer's only recourse for any issue with the Hardware lies with the manufacturer.
9.7. Backups. Customer should perform data backups prior to and throughout the duration of the project. All data is the responsibility of Customer, and EITS will not be held responsible for data loss unless such loss is the result of negligence or misconduct by EITS. In the event of data loss occurring during the project that is not caused by EITS’s negligence or misconduct, EITS will provide Customer reasonable support in the restoration of data from Customer data backups.
9.8. Software Licensing. EITS will not be held liable for software license compliance. Software license compliance is between Customer and licensor.
9.9. Scope. EITS will not be held responsible for work not set forth in the project’s Statement of Work, or a mutually agreed Change Request form.
9.10. Events Beyond Either Party’s Control. Neither party will be held responsible for delays or failures to perform hereunder due to causes beyond its reasonable control (including, without limitation, acts of God, fire, flood, war, explosion, sabotage, terrorism, embargo, civil commotion, acts or omissions of any government entity, supplier delays, communications or power failure, equipment or software malfunction, or labor disputes).
Beyond EITS’ Control. EITS will not be held responsible for
delays or failures to perform related to the custom configured or specialized
hardware or software in Customer environment of which EITS is not aware at the
time of its execution of this Agreement that requires modification by the
manufacturer to enable the services hereunder to be performed as originally
contemplated by the parties.
10. TERM AND TERMINATION
10.1. This Agreement will commence upon the execution hereof by both Customer and EITS and will continue until terminated in accordance with the provisions of this Agreement (the “Term”).
10.1.1. Termination. Either party may terminate this Agreement upon written notice to the other at any time that there are no Products and Services being provided by EITS to Customer and all Statements of Work have been completed in accordance with their terms. During any time while a Statement of Work is outstanding and has not been completed, either party may terminate a Statement of Work upon written notice to the other (a) if the other party materially breaches such Statement of Work and fails to cure such breach within sixty (60) days after receiving written notice from the non-breaching party; (b) if the other party files a petition for bankruptcy, insolvency or reorganization under any bankruptcy law or is adjudicated bankrupt; (c) if a petition in bankruptcy is filed against the other party and such petition is not dismissed within sixty (60) days of the filing date; (d) if the other party becomes insolvent or makes an assignment for the benefit of its creditors pursuant to any bankruptcy or insolvency law; or (e) if a receiver is appointed for the other party or its business. In addition, EITS may terminate this Agreement and any or all Statements of Work, effective immediately upon written notice to Customer, if Customer fails to pay any portion of the Fees when due. Customer will be notified in writing or electronically at least 15 calendar days prior to such termination.
10.1.2. Obligations Upon Termination.
Upon the termination of this Agreement: (a) Customer shall promptly pay in full
all amounts due to EITS under this Agreement and all Statements of Work; (b)
all licenses granted hereunder (if any) will immediately terminate and Customer
shall immediately cease all use of the Products and Services. The termination
of this Agreement does not relieve either party of any obligations that have
accrued on or before the effective date of the termination.
Customer and EITS acknowledge that each has invested significant resources in the training of its employees and that these employees are a valuable resource. Therefore, during the performance of this contract and for a period of twelve (12) months following the completion of work to be performed hereunder, neither EITS nor Customer shall directly or indirectly solicit for hire employees of the other Party that performed services hereunder; this provision, however, shall not prevent either party from hiring an employee of the other party should such employee directly apply for employment with that party. If one party wants to hire directly an employee of the other party who performed services hereunder, such party will notify the other party of its intent prior to so doing, and such party may hire that employee subject to the reasonable approval of the other without being in breach of this agreement. Should such a hiring of an applicable EITS or Customer employee take place, the hiring party will be in material breach of this agreement.
12. OTHER TERMS AND CONDITIONS
12.1. Choice of Law: The laws of the State of South Carolina will govern the construction and operation of this contract without regard to the conflicts of law’s provisions thereof. Any dispute hereunder shall first be resolved through good faith negotiations between executives of both parties. If the parties cannot so resolve a dispute within a reasonable period, a party may notify the other that negotiations will terminate on a date certain that is not less than five (5) business days after the date of notice. After the termination of negotiations, either party may submit the dispute to a court of competent jurisdiction in the State of NC. Customer hereby waives the right to request change of venue. Each party shall be responsible for its own compliance with laws, regulations and other legal requirements applicable to the conduct of its business and this Agreement, and agrees to comply with all such laws, regulations and other legal requirements.
12.2. Attorneys’ Fees: In the event it is necessary for EITS to bring legal action due to Customer non-payment, EITS shall be entitled to recover all costs of such action, including reasonable attorneys’ fees and interest as provided in Section 5 of this Agreement.
12.3. Severability: The invalidity of any provision of this contract will not affect the validity and binding effect of any other provision.
12.4. Relationship of Parties: The relationship created hereunder between the parties shall be solely that of independent contractors entering an agreement. No representations or assertions shall be made or actions taken that could imply or establish any agency, joint venture, partnership, employment or other relationship between the parties with respect to the subject matter of this contract. Subject to Customer approval in its sole discretion, EITS may subcontract any service described herein to subcontractor(s) of EITS's choosing, provided such subcontractor(s) shall possess qualifications equivalent to those of EITS.
12.5. Assignment: Neither Party may assign this contract without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that either party may assign this contract to a corporation controlling, controlled by or under common control with the assigning party without the prior written consent of the other Party. Notwithstanding the foregoing, EITS may assign payment for financing purposes without notifying Customer, but Services will not be affected. Execution. This Agreement may be executed in counterparts, each of which will be deemed an original and taken together will constitute one single agreement between the parties with the same effect as if the signatures were upon the same instrument. Facsimile, electronically scanned and digital (e.g., DocuSign) signatures shall be deemed to be as valid as original signatures for all purposes of this Agreement.
12.6. Copyright: The copyright in all documents created hereunder for Customer shall belong to EITS unless otherwise noted. All intellectual property rights in all pre-existing works and derivative works of such pre-existing works as well as installation scripts and other deliverables and developments made, conceived, created, discovered, invented or reduced to practice in the performance of work hereunder, shall belong to EITS.
12.7. Non-Exclusive Relationship. This Agreement is nonexclusive. Each party will be free to enter other similar agreements or arrangements with other third parties.
12.8. Subcontractors. All or certain portions of the Products and Services provided, sold or licensed under this Agreement may be provided by third parties in EITS’ sole discretion.
12.9. Compliance with Laws. Each party shall be responsible for its own compliance with laws, regulations and other legal requirements applicable to the conduct of its business and this Agreement, and agrees to comply with all such laws, regulations and other legal requirements.