Master Service Agreement | Managed Services Agreement
This Agreement (“Agreement”) is made by and between Client and Vertical Technologies, LLC (“Service Provider”), located at 110 E Houston St, San Antonio, TX 78204.
WHEREAS, Service Provider is a provider of Network Services;
WHEREAS, Client desires to contract with Service Provider for the provision of the Service Provider’s Managed Services;
NOW THEREFORE, for and in consideration of the premises contained herein and good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
This Agreement shall be effective as of the date defined in the Service Contract, execution by Client unless sooner terminated in accordance with the terms hereof. Client and Service Provider reserve the right to review this agreement quarterly.
This Agreement shall renew automatically at the end of the prior Agreement term unless Service Provider or the Client affirmatively terminates it in accordance with the conditions set forth in this Agreement.
This Agreement is designed to provide the Client with centralized, proactive monitoring and professional network support services for all locations, critical devices and software applications as outlined in Appendix A and Appendix B.
The Client Network is eligible for participation in Service Provider’s Managed Services as outlined in this Agreement provided it is in good condition and Service Provider’s serviceability requirements and site environmental conditions are met:
Service Provider reserves the right to inspect the Network upon the commencement of the term of this agreement for the purpose of creating a diagram of the Network and/or conducting a diagnostic test of the Network. Unless stated otherwise, said inspection shall be charged against the Client using our standard hourly billing rates as outlined in Appendix C.
It is the responsibility of the Client to promptly notify Service Provider of any events/incidents that could impact the services defined within this agreement and/or any supplemental service needs.
Service Provider shall provide services as defined in this agreement during business hours, unless otherwise specified in Appendix A, and in accordance with Service Provider’s Network policies then in effect.
Client agrees that it will inform Service Provider of any modification, installation, or service performed on the Network by individuals not employed by Service Provider in order to assist Service Provider in providing an efficient and effective Network support response.
Only representatives authorized by Service Provider will be eligible to access and service Client network. Any unauthorized access or service conducted on the network without the explicit consent of Service Provider which results in negative network performance will not be covered by the monthly plan fee as documented in Appendix D, and will be billed according to Service Provider’s labor rates as outlined in Appendix C.
Service Provider shall be obligated to provide service only at the Service Site(s) as outlined in Appendix B. If the Client desires to relocate, add or remove locations, the Client shall give appropriate notice to Service Provider of its intention to relocate sixty (60) days in advance. Service Provider reserves the right to renegotiate service terms with respect to any relocation and/or addition of locations by the Client. Such right includes the right to refuse service to Network at the relocation and/or new site.
In addition to other limitations and conditions set forth in this Agreement, the following service and support limitations are expressed:
For purposes of this Agreement, the Network shall include all locations as outlined in Appendix B. In addition, this agreement will cover all critical devices as listed in Appendix B.
Any additional critical devices added to the network without the consent or acknowledgement of Service Provider will not be honored or supported by Service Provider under this agreement.
Service Provider reserves the right to renegotiate rates based on additions of locations, hardware, software, hardware support requirements, and/or services as well as modify this Agreement (or any portion thereof) with a 30-day notice.
Client will designate a managerial level representative to authorize all Network Support Services as outlined in Appendix A of this Agreement. This information will be maintained in Appendix C of this Agreement. Whenever possible, said representative shall be present whenever a Service Provider’s service representative is on-site. It is the Client’s responsibility to inform Service Provider of any changes made to this representation thirty (30) days in advance.
Client is purchasing Service Provider’s Managed Services under this Agreement for the purchase price outlined in Appendix D.
Said purchase price shall be paid in monthly installments with the first installment due upon execution of this agreement. Each payment thereafter shall be due the first day of each calendar month. Services provided hereunder shall be assessed against this Client as provided herein.
Services shall be charged against the Client in accordance with the terms and conditions as outlined in Appendix D, and the Rate Card in Appendix C.
Any supplemental services provided by Service Provider which are outside the terms of this Agreement, shall be charged to Client as an additional charge in accordance with the terms and conditions as outlined in Appendix D. Any additional billing charges will be invoiced at the end of each month, with payment expected within thirty (30) days, unless otherwise specified by Service Provider
Client shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, federal, state, or otherwise, however designated which are levied or imposed by reason of the services provided pursuant to this Agreement. Without limiting the foregoing, Client shall promptly pay to Service Provider an amount equal to any such taxes actually paid or required to be collected or paid by Service Provider
Service Provider reserves the right to refuse or suspend service under this Agreement in the event Client has failed to pay any invoice within thirty (30) days of said invoice date, whether it is an invoice for services provided under this Agreement or any other agreement between the parties.
Service Provider makes and the Client receives no warranty, express or implied, and all warranties of merchantability and fitness for a particular purpose are expressly excluded. In no event shall Service Provider or any of its Directors, Employees or Other Representatives be for any special, incidental, indirect, or consequential damages of any kind including, without limitations, those resulting from loss of data, income, profit, and on any theory of liability, arising out of or in connection with the services or use thereof even if it has been advised or has knowledge of the possibility of such damages.
The Client shall assume full responsibility for the overall effectiveness and efficiency of the operating environment in which the Network is to function.
Client hereby agrees to indemnify and defend at its sole expense: Service Provider, its employees, agents, representatives, directors and shareholders, from and against any and all claims arising out of or based upon Client’s use of all services, software or hardware provided or serviced hereunder, including, but not limited to, claims based on software licensing violations, copyright infringement, trademark infringement and patent infringement. In addition, Client agrees to pay any judgment and costs associated with such claim.
Service Provider and/or Client shall have the right to terminate this Agreement under any of the following conditions:
Upon termination, all hardware and software installed by Service Provider that was required to conduct network support services are the property of Service Provider and will be surrendered and returned to Service Provider at end of the agreement.
In the event Client terminates this Agreement for any reason other than a breach of the terms herein, Client shall be entitled to a refund of any monies extended in advance of the month or part thereof for which services by Service Provider were last performed.
Because employees are one of our most valuable assets, policy and professional ethics require that our employees not seek employment with, or be offered employment by any Client during the course of engagement and for period of one (1) year thereafter. Your signature on this document confirms your organizations agreement to adhere to this professional standard of conduct.
Client acknowledges that Service Provider is involved in a highly strategic and competitive business. Client further acknowledges that Client would gain substantial benefit and that Service Provider would be deprived of such benefit, if Client were to directly hire any personnel employed by Service Provider Except as otherwise provided by law, Client shall not, without the prior written consent of Service Provider, solicit the employment of Service Provider personnel during the term of this Agreement and for a period of one (1) year following expiration of this Agreement.
Client agrees that Service Provider damages resulting from breach by Client of this provision would be impracticable and that it would be extremely difficult to ascertain the actual amount of damages. Therefore, in the event Client violates this provision, Client shall immediately pay Service Provider an amount equal to 50% of employee’s total annual compensation, as liquidated damages and Service Provider shall have the option to terminate this Agreement without further notice or liability to Client. The amount of the liquidated damages reflected herein is not intended as a penalty and is reasonably calculated based upon the projected costs Service Provider would incur to identify, recruit, hire and train suitable replacements for such personnel.
This Confidentiality, Privacy and Compliance portion of this Agreement is in addition to other terms and conditions set forth in any and all contracts currently existing or hereafter created between Client and Service Provider. This agreement shall under no circumstances be deemed to alter any such contract except as specifically provided below.
Service Provider acknowledges that in the course of providing services to said Client, Service Provider may learn from Client certain non-public personal and otherwise confidential information relating to said Client, including its customers, consumers or employees. Service Provider shall regard any and all information it receives which in any way relates or pertains to said Client, including its customers, consumers or employees as confidential.
Service Provider shall take commercially reasonable steps to not disclose, reveal, copy, sell, transfer, assign, or distribute any part or parts of such information in any form, to any person or entity, or permit any of its employees, agents, or representatives to do so for any purpose other than purposes which serve Client or as expressly and specifically permitted in writing by said Client or as required by applicable law.
Said Client acknowledges that it also has responsibility to keep records and information of its business, customers, consumers, and employees, confidential.
Said Client also acknowledges that all information and services, consulting techniques, proposals, and documents disclosed by Service Provider or which comes to its attention during the course of business and provided under this agreement constitute valuable assets of, and confidential and/or proprietary to Service Provider
This provision shall survive termination of this Agreement and any other agreements between Client & Service Provider.
Service Provider shall maintain at its sole expense commercial general liability insurance for personal injury and property damage for a general aggregate of $2,000,000; worker’s compensation insurance as required by law; and hired and non-owned automobile liability insurance for the combined single limit of $1,000,000. At Client’s request, Service Provider further agrees to furnish Client with certificates, including renewal certificates, evidencing such coverage within thirty (30) days of commencing performance under this Agreement, at every renewal and at other times as may be reasonably requested by Client.
Sole Agreement: This Agreement constitutes the entire and only understanding and agreement between the parties hereto with respect to the subject matter hereof and, except as expressly set forth herein, maybe amended only by a writing signed by each of the parties hereto.
Severability: If a court of competent jurisdiction determines that any terms or provision of this Agreement is invalid or unenforceable; such determination shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement, which shall continue to be given full force and effect.
Captions: The captions of the paragraphs of this Agreement are for convenience only and shall not affect in any way the meaning or interpretation of this Agreement or any of the provisions hereof.
Binding Effect: This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their heirs, legal representatives, personal representatives, administrators, successors, and permitted assigns, as the case may be.
Waiver: Any failure of either party to comply with any obligation, covenant, agreement, or condition herein may be expressly waived, but only if such waiver is in writing and signed by the other parties. Any such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement, or conditions shall not operate as a waiver of and/or set precedence with respect to any subsequent and/or other failure.
Governing Law: Notwithstanding the place where this Agreement may be executed by any party, this Agreement, the rights and obligations of the parties, and any claims and disputes relating hereto shall be subject to and governed by the laws of the State of Texas as applied to agreements among Texas residents to be entered into and performed entirely within the State of Texas, and such laws shall govern all aspects of this Agreement. The parties agree to submit to the personal jurisdiction and venue of the state and federal courts in the State of Texas, in the Judicial Circuit where Service Provider has its principal office, for resolution of all disputes and causes of action arising out of this Agreement, and the parties hereby waive all questions of personal jurisdiction and venue of such courts, including, without limitation, the claim or defense therein that such courts constitute an inconvenient forum.
Assignment: This Agreement and the rights and duties hereunder shall not be assignable by either party hereto except upon written consent of the other.
Force Majeure: Service Provider shall not be liable for any problems due to external causes beyond its control including, but not limited to, terrorist acts, natural catastrophe, fire, flood, or other act of God, and/or power failure, virus propagation, improper shut down of the Network and related Network Systems/Services.
Attorneys’ Fees. In any action between the parties to enforce any of the terms of this Agreement, the prevailing party shall be entitled to recover all expenses, including reasonable attorneys’ fees.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year defined in the Service Contract.
|Server and Application Support||Server Performance Monitoring (Applications, Hardware and O/S)||Monitoring of the ongoing health, performance and errors in Server class for server class OS applications and hardware components as well as errors in server-based Operating Systems (Windows, Linux etc).|
|Server Maintenance (hardware and O/S)||Maintenance of server equipment to ensure reliability and continued high quality service. Optimizing hard drive performance, clearing logs & temp files and other check listed maintenance items.|
|Microsoft Windows O/S Management||Hardware Patches, Feature Release, Hot fixes are updated on a regular basis to servers. This will be applied on Server class OS running on Server class hardware.|
|Unlimited Remote Server Support and Troubleshooting||Remotely support Server class OS running Server class hardware and troubleshoot software and or hardware issues during business hours.|
|Unlimited Onsite Server Support and Troubleshooting||On a as needed basis during business hours.|
|Desktop Support Services||Desktop Endpoint Protection Monitoring||Monitoring of Desktop AV, Spyware, Antimalware service|
|Desktop Endpoint Protection Management||Every desktop connected to the Client network is required to run antivirus software. This forms the second line of defense against viruses – ensuring that if infected files are opened on Client computers, the virus is identified and file access stopped, preventing further infection.|
|Comprehensive Workstation Preventative Maintenance||in addition to 24×7 workstation monitoring, plus basic maintenance activities such as defrags, patch management, disk cleanup, check disk etc.|
|Application Compliance||Create an approved list of applications and design and enforce application standards for your organization’s desktops to ensure that no employee installs prohibited software.|
|License Compliance Reporting||Monitor and supply a regular report showing actual licenses consumed of a specific application, compared to the number of installations of that application. This allows compliance of vendor software licensing agreements and helps to avoid making unnecessary software purchases.|
|Unlimited Remote Workstation Support & Troubleshooting||Remotely support desktop workstations running Windows 95, 98, 2000, XP, 7, Linux & troubleshoot software and or hardware issues during business hours.|
|Unlimited Onsite Workstation Support and Troubleshooting||Onsite support to troubleshoot software and or hardware issues during business hours.|
|Network Support Services||Router and Managed Switch Availability and Performance Monitoring||Monitor the ongoing availability and connectivity of networking hardware as well as performance bandwidth, traffic and errors of networking hardware.|
|Unlimited Remote Support and Troubleshooting for Routers and Managed Switches||Remotely support and troubleshoot software and or hardware issues during business hours.|
|Unlimited Onsite Support and Troubleshooting for Routers and Managed Switches||On a as needed basis during business hours|
|Firmware Updates||Updates for all hardware related to firewalls, managed switches, wireless access points and routers.|
|Printer Support Services||Printer performance monitoring||Monitoring of the ongoing availability and performance of the hardware and printing interface as well as monitoring networked printer connectivity, page counts, and toner levels, and specific printer error messages.|
|Disaster Recovery and Backup Support Services||Monitored Backup Solution||Monitor success, failure or errors related to your on-site backup solution.|
|Security Support Services||Availability / Connectivity Monitoring, and Security Performance Monitoring – Firewalls||Monitor availability and connectivity of the firewall to ensure the device is active. Monitor the health and operation of the firewall, including security incidents reported, network traffic, and device availability.|
|Firewall Management||Maintain system version software and operating system of the firewall, continually manage policy and configuration changes; coordinate necessary service outages to minimize access and security interruptions.|
|IT Consulting Services||Quarterly Network Health Review Meetings||Regularly scheduled meetings to review a multitude of network health reports and use it as an opportunity to prioritize projects, plan budgets and discuss other solutions that can improve the network.|
|Reporting, technical analysis, technical usage, business impact||Regular reports that have analysis of technical issues. They include: Windows patch levels/success, backup performance, O/S errors, security issues, application compliance and more.|
Out of Scope / Billable Services
NOTE: Service Provider shall not be responsible to Client for loss of use of the Network or for any other liabilities arising from alterations, additions, adjustments or repairs which have been made to the Network other than those conducted by authorized representatives of Service Provider.
For services not explicitly listed in the chart above, Client can assume those services will be BILLABLE and will be subject to Service Provider’s bill rates as specified in Appendix C.
This agreement covers the Client locations listed on the Service Contract.
Any additional critical devices or software applications added to the network without the consent or acknowledgement of Service Provider will not be honored or supported by Service Provider under this agreement.
Service Provider reserves the right to renegotiate rates based on additions of locations, hardware, software, hardware support requirements, and/or services as well as modify this Agreement (or any portion thereof) with a 30-day notice.
As such, Client is responsible for informing Service Provider of changes to the number of devices within five (5) business days. The monthly pricing will be automatically updated with the addition of any new devices or software applications.
Client will designate a managerial level representative to authorize all Network Support Services. Whenever possible, said representative shall be present whenever a Service Provider’s service representative is on-site. It is the Client’s responsibility to inform Service Provider of any changes made to this representation thirty (30) days in advance.
Service Provider’s Service Desk provides a point of escalation when Client has an issue or question. Service Provider’s staff is available during business hours to log issues and support your team, or at other times outside of normal business hours as outlined in Appendix A.
Client can contact Service Provider’s Service Desk in a number of ways:
Telephone: (210) 338-3890
Client Portal: https://thinkvt.portal.mspmanager.com
Service Provider commits to responding to Client in a timely manner via phone, email, remote access, and/or on-site services as defined in Appendix A of this Agreement.
When contacting our Service Desk, Client should be ready to provide the following information:
For services not explicitly listed in Appendix A, refer to the Service Provider’s bill rates indicated on the Service Contract.
|Holiday||Date||Service Support Hours|
|New Year’s Day||January 1||N/A|
|Memorial Day||last Monday in May||N/A|
|Independence Day||July 4th||N/A|
|Labor Day||1st Monday in September||N/A|
|Thanksgiving Day||fourth Thursday in November||N/A|
|Christmas Day||December 25th||N/A|
Emergency Support Services are available as outlined in Appendix A. Should Client detect an issue with a service or device outside standard business hours, please refer to Appendix A to review entitlements.
Service Provider has defined it Service Desk Severity Rankings and Response times below:
|Initial Response Time||Escalation||Expected Time to Resolution|
|Emergency (Business Hours)||1 hour||N/A||Determined by the nature of the event|
|Blocker||2 hours/next business day||1 Hour||Determined by the nature of the event|
|Critical||4 hours/next business day||1 Hour||Determined by the nature of the event|
|Major||6 hours/next business day||2 Hour||Determined by the nature of the event|
|Normal||8 hours/next business day||4 Hour||Determined by the nature of the event|
|Cosmetic||16 hours/2nd business day||4 Hour||Determined by the nature of the event|
If you have questions or concerns about the operation of the service desk, wish to compliment the team, or simply require more information about an incident; please contact Carl Dugart at (210) 338-3890 or by email: Carl.Dugart@thinkvt.com.
The monthly cost of the Service Provider’s Managed Services program is based upon a few key factors:
Agency will provide services in accordance with the specifications detailed below. “Agency” includes all employees, contractors, subcontractors and divisions or subsidiaries that provide services conducted under this Agreement, and Agency’s permitted assignees. The pricing structure provided and the terms of this Agreement are confidential and proprietary to Customer. Except as required by applicable law, rule or regulation, Agency will not disclose the contents of this Agreement without Customer.
Compliance. In connection with the performance of this Agreement, Agency and each and every Agency solution with Customer will comply with all local, state and federal laws, regulations, and orders, to the extent applicable to Agency including, but not limited to, equal opportunity employment laws and regulations, laws and rules promulgated or enforced by the Securities Exchange Commission (SEC), Health Insurance Portability and Accountability Act (HIPAA), the Fair Labor Standards Act, Family Medical Leave Act, Uniform Services Employment and Reemployment Rights Act, Fair. Credit Reporting Act and the Drug-Free Workplace Act and the Immigration Reform and Control Act. In addition, Agency agrees to comply with the requirements of 41 CFR 60-1.4, 60-1.7, 60-1.12, 60-1.17, 60.3, 60-250.44 and 60-741.44 and occupational safety and health regulations.
Compliance. In connection with the performance of this Agreement, Customer will comply with all applicable local, state and federal laws, regulations, and orders, including, but not limited to, occupational safety and health regulations.
In consideration of Agency’s performance, Customer will pay undisputed amounts to Agency in accordance with the pricing set forth in separate Statements of Work (SOW). Agency will invoice Customer at the address that Customer designates in writing to Agency. Neither Agency nor its placements with Customer shall be reimbursed for any fee, charge expense beyond those set forth in a SOW(s) unless such fee, charge or expense is preapproved in writing by an authorized representative of the Customer. Payment terms will be due net fifteen (15) days of Customer being invoiced for services. In the event of termination of this Agreement, Customer will pay undisputed amounts to Agency promptly for services performed by Agency employees and for all undisputed preapproved expenses incurred by Agency, prior to or on the date of such termination. Agency signed invoices will suffice for tracking of payments herein, upon audit and verification by Customer, be conclusive as to the number of compensable incidences by Agency at Customer. The pricing set forth in the Statements of Work shall be firm for the term as such.
Payment of fees for each item shall only be made upon invoice submission from Agency by Customer’s designated representative. Any mistake or error must be communicated by Agency to Customer within one-hundred eighty (180) days from receipt of Agency’s invoice by Customer after which time it shall be Customer’s sole discretion whether to pay such amount.
Agency agrees to comply with the Customer’s travel guidelines when incurring travel expenses provided that any travel expense shall only be incurred upon prior written approval by an authorized representative of the Customer.
Exhibit A hereto upon requested.
Agency warrants and represents that:
TO THE FULLEST EXTENT PERMITTED BY LAW, AGENCY SHALL INDEMNIFY, DEFEND AND HOLD CUSTOMER, ITS SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS HARMLESS FROM AND AGAINST ALL CLAIMS OR CHARGES, CAUSES OF ACTION, LAWSUITS, JUDGMENTS, LOSSES, DAMAGE TO PERSONS OR PROPERTY, INJURY, LIABILITIES, FINES, PENALTIES, COSTS AND EXPENSES OF ANY KIND OR NATURE (INCLUDING ATTORNEY FEES AND COURT COSTS) CAUSED, DIRECTLY OR INDIRECTLY, BY AGENCY’S, AGENCY EMPLOYEE’S OR AGENCY SUBCONTRACTOR’S NEGLIGENCE OR ACTS OF NEGLIGENCE OR WILLFUL MISCONDUCT RELATING TO, ARISING OUT OF, OR INCIDENT TO THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, AGENCY’S OR AGENCY’S EMPLOYEES OR SUBCONTRACTORS FAILURE TO COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SAME SHALL INCLUDE INJURY OR DEATH TO ANY PERSON OR PERSONS (INCLUDING AGENCY’S EMPLOYEES AND AGENTS).
AGENCY’S OBLIGATIONS UNDER THIS SECTION SHALL NOT BE LIMITED BY APPLICABLE WORKERS’ COMPENSATION INSURANCE OR SIMILAR LAWS. AGENCY WAIVES ANY RIGHTS IT MAY HAVE TO ASSERT ANY IMMUNITIES OR DEFENSES IT MAY HAVE UNDER SUCH LAWS AGAINST ANY INDEMNIFIED PARTY.
THIS PROVISION SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THE AGREEMENT.
Agency and Customer agree to notify the other in writing of any asserted claim within a reasonable period of time upon discovery of the occurrence upon which the claim may be based or learning of the claim, whichever occurs first. Agency, at Agency’s expense, shall fully cooperate with Customer in the defense of any claim, charge or state/federal agency action. If Customer is required to take any action to enforce its indemnity rights under this Agreement or to assume the defense of any claim for which it is entitled to receive an indemnity under this Agreement because of Agency’s failure to promptly assume such defense, then Customer may also recover from Agency any reasonable attorney’s fees (including cost of in-house counsel at market rates for attorneys of similar experience) and other costs of enforcing its indemnity rights or assuming such defense.
Any notices, consents or other communications required or permitted under this Agreement must be in writing (including telecommunications) and delivered personally or sent by facsimile or other wire transmission (with request for assurance in a manner typical with respect to communication of that type), overnight courier (postage prepaid), registered or certified mail (postage prepaid with return receipt requested), addressed as shown on the first page of this Agreement.
Agency represents and warrants that no officer, director, employee, or agent of Customer has been or will be employed, retained or paid a fee, or otherwise has received or will receive any personal compensation or consideration, by or from Agency or any of Agency’s officers, directors, employees, or agents in connection with the obtaining, arranging, or negotiation of this Agreement or other documents entered into or executed in connection with this Agreement.
Except as specifically identified as a party’s sole remedy, any rights of cancellation, termination, liquidated damages, or other remedies prescribed in this Agreement are cumulative and are not exclusive of any other remedies to which the injured party may be entitled. Neither party shall retain the benefit of inconsistent remedies. In the event of any dispute, it shall be Customer’s sole discretion whether to seek injunctive relief to enforce any or all relevant terms of this Agreement or any SOW(s) which the parties hereto agree shall be available remedies hereunder.
Neither party shall be deemed in default of this Agreement to the extent that any delay or failure in the performance of its obligations results from any cause beyond its reasonable control and without its fault or negligence, such as acts of God, acts of civil or military authority, embargoes, epidemics, war, riots, insurrections, fires, explosions, earthquakes, floods or strikes (“Force Majeure”).
If any Force Majeure condition affects Agency’s ability to perform, Agency shall give immediate notice to Customer and Customer may elect to either: (1) Terminate the Agreement or any part thereof, (2) suspend the Agreement or any part for the duration of the Force Majeure condition, with the option to obtain elsewhere services to be furnished under this Agreement and deduct from any commitment the quantity of the services obtained or for which commitments have been made elsewhere or (3) resume performance under the Agreement once the Force Majeure condition ceases, with an option in Customer to extend any affected performance date up to the length of time the Force Majeure condition endured. Unless Customer gives written notice within thirty (30) days after being notified of the Force Majeure condition, option (2) shall be deemed selected.
Agency acknowledges that it has had access prior to execution of this Agreement, and will continue to have access after the execution of this Agreement while providing services, to certain confidential information and products of Customer, including, but not limited to, employee, human resources, benefits, financial and business data, strategic plans, Customer information, product information and other Customer property, including intellectual property. Such information, as well as the terms of this Agreement, in whatever form shall be collectively referred to herein as the “Confidential Information.” Agency acknowledges that all such Confidential Information has been disclosed to Agency in strict confidence and that maintenance of the confidentiality of such Confidential Information to the fullest extent possible is extremely important. Agency agrees not to use, disclose, disseminate or otherwise make available to any third party, either directly or indirectly, any Confidential Information at any time or in any manner, both during the term of this Agreement and after its termination, except as expressly authorized herein or in a separate document signed by Customer. Agency agrees to take all reasonable precautions to prevent inadvertent or unauthorized use, dissemination or disclosure of the Confidential Information by Agency and by Agency employees. All documents, records, databases, reports, designs and other materials containing Confidential Information furnished to Agency or produced by Agency or others in connection with this Agreement, will be and remain the sole property of Customer and will be returned to Customer immediately upon the written request of Customer, and/or termination of this Agreement. In such event, Agency will promptly return and deliver to Customer all such property in any form and will certify in writing that it has not retained any such property (or any reproduction) in any form. Agency’s obligations under this Agreement shall survive the return of such Confidential Information and/or termination of this Agreement.
The obligations of confidentiality set forth herein shall extend to Agency employees or contractors in the performance of their assignments with Customer. Agency shall ensure that all Agency employees or contractors shall sign Customer
Agency covenants that any Pre-existing Property licensed under Section 14(d) to Customer does not infringe or misappropriate the Intellectual Property of others, and that Agency will hold Customer harmless from any claims and losses based on any such infringements or misappropriations. Agency also represents that Agency is not bound by any agreement with another that would be violated by Agency’s work for Customer or by Agency’s fulfillment of its obligations hereunder.
No licenses, express or implied, under any patents, copyrights, trademarks, or other intellectual property rights are granted by Customer to Agency or Agency employees under this Agreement. Agency shall ensure that all Agency employees assigned to Customer sign the then current Customer assignment of inventions and intellectual property rights agreement, which is hereby incorporated into this Agreement by this reference. Agency shall deliver an executed copy to Customer no later than the start date for the Agency employee assignment.
NEITHER PARTY WILL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, OR FOR LOSS OF REVENUE OR PROFIT IN CONNECTION WITH THE PERFORMANCE OR FAILURE TO PERFORM THIS AGREEMENT, REGARDLESS OF WHETHER LIABILITY ARISES FROM BREACH OF CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY.
It is expressly understood and agreed that this Agreement does not grant Agency an exclusive privilege to provide to Customer any or all services of the type described in this Agreement, any SOW(s) nor requires Customer to purchase any services. It is, therefore, understood that Customer may contract with other employment agencies for the procurement or trial of comparable services and that Customer may itself perform the services described here.
For the term of this Agreement and for three (3) months following the expiration or termination of this Agreement and any SOW(s), Agency agrees that it shall not solicit for employment, without prior written consent of Customer, any employee of Customer.
Agency agrees that it will:
Agency hereby represents and warrants to Customer that:
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. Any delay or waiver by a party to declare a breach or seek any remedy available to it under this Agreement or by law will not constitute a waiver as to any past or future breaches or remedies.
Agency shall not publish or distribute, or cause to be published or distributed, any media releases, advertisements or pictorial, graphic or literary works, that relate, describe or pertain in any way to this Agreement, its relationship with Customer or its Affiliates, its performance of services hereunder; or any Developed Property developed hereunder that are owned by Customer without first obtaining the prior written consent of Customer.
This Agreement and its SOW(s) are the entire understanding and agreement between the parties with respect to the subject matter covered, and all prior agreements, understandings, covenants, promises, warranties, and representations whether, written or oral, express or implied, not incorporated in this Agreement are superseded and terminated. This Agreement may not be amended or supplemented in any way except in writing, dated and signed by authorized representatives of both parties.