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MSA

MASTER SERVICE AGREEMENT

THIS MASTER SERVICE AGREEMENT (“Agreement”) is made this ___________ (“Effective Date”) by and between Bourn Technology(“Managed Service Provider” or “MSP”), and ________________________________(“Client”).

  1. These terms (“Terms”) apply to Your purchases from Bourn Technology (“MSP”) of services (“Services”), as well as licenses for software, hardware, support and maintenance services, and/or subscription services (collectively, “Product”).  You hereby engage and retain MSP to render Services or provide Product, asspecifically set forth and limited in the “Statement of Work” or “SOW”, or subsequent Statements of Work, or any work order as agreed among the Parties (each a “Work Order”) under such SOW.  Except as otherwise stated therein, subsequent SOWs or Work Orders shall be made a part of and subject to the terms contained herein. No Product or Services will be provided under these Terms alone but will require the execution of a written or electronic SOW, or other mutually acceptable Work Order documentation, each of which must be executed by both Parties and, upon such execution, is deemed incorporated in these Terms for all purposes.  In the event of any conflict between the Statement of Work and these Terms, the terms of the Statement of Work will prevail over these Terms.

MSP may change these Terms at any time. Using the Services after the changes to these Terms become effective means You agree to the new terms. If You don’t agree to the new terms, You must stop using the Services, contact MSP and terminate any current SOW.

Your right to use the Third-Party Services is subject to Your Agreement with us, and to Your understanding of, compliance with and consent to these Terms and conditions of any Third-Party agreements, which MSP does not have authority to vary, alter or amend. 

Therefore, MSP may utilize a Third-Party Service Provider in its discretion to provide the Services in accordance with these Terms.  MSP will use reasonable efforts to assign, transfer and facilitate all warranties (if any) for the Third-Party Service Provider to You.  The Third-Party Provider may require the MSP to sign a contract with the Third-Party Provider for its services (“Third-Party Contract”) and the terms of the Third-Party Contract may require certain conditions and requirements upon You.  Access to the terms and conditions of any such Third-Party Contract(s) will be provided to You or attached to the SOW which identifies the Third-Party Service Provider.  You hereby agree to review all Third-Party Terms and Conditions, and consent to those Third-Party Terms and Conditions which You have consented MSP to contract upon its behalf.  Third-Party Provider terms and conditions link of PDF can be found at our website and/or SOW as applicable.

MSP does not own certain Third-Party Products and the use thereof is subject to certain rights and limitations of which we need to inform You.  Your right to use the Third-Party Products is subject to Your Agreement with us, and to Your understanding of, compliance with and consent to these Terms and conditions of the Third-Party agreements, which MSP does not have authority to vary, alter or amend. 

MSP will use reasonable efforts to assign, transfer and facilitate all warranties (if any) for the Third-Party Product Vendor to You, but will have no liability whatsoever for the quality, functionality or operability of any Third-Party Products, and MSP will not be held liable as an insurer or guarantor of the performance, downtime or usefulness of any Third-Party Product.  The Third-Party Product Vendor may require the MSP to sign a contract with the Third-Party Product Vendor for its products (“Third-Party Contract”) and the terms of the Third-Party Contract may require certain conditions and requirements upon You.  Access to the terms and conditions of any such Third-Party Contract(s) will be provided to You or attached to the SOW which identifies the Third-Party.  You hereby agree to review all Third-Party Terms and Conditions, and consent to those Third-Party Terms and Conditions which You have consented MSP to contract upon its behalf.  Third-Party Product Vendor terms and conditions link of PDF can be found at our website and/or SOW as applicable.

It is the responsibility of You to promptly notify MSP of any events/incidents that could impact the services defined within these Terms and/or any supplemental service needs. 

MSP shall provide services as defined in these Terms during MSP’s regular business hours, unless otherwise specified in any subsequent SOW, or other contract documents, and in accordance with MSP’s IT Service policies then in effect.

You agree that You will inform MSP, prior to, MSP making any modification, installation, or service performed on the Network by individuals not employed by MSP in order to assist MSP in providing an efficient and effective Network support response.

Only representatives authorized by MSP will be eligible to access and service Your network.  Any unauthorized access or service conducted on the network without the explicit consent of MSP which results in negative network performance will not be covered by the monthly plan fee as documented in the SOW or other contract documents and will be billed according to MSP’s labor rates as outlined in the SOW.

MSP shall be obligated to provide service only at the Service Site(s) as outlined in the SOW.  If You desire to relocate, add or remove locations, You shall give appropriate notice to MSP of Your intention to relocate sixty (60) days in advance.  MSP reserves the right to renegotiate service terms with respect to any relocation and/or addition of locations by You.  Such right includes the right to refuse service at the relocation and/or new site.

It is mutually agreed that MSP will have no responsibility for any deficiencies in the System until the MSP has had a reasonable opportunity to conduct a review the current System and to provide You with Our recommendations and You have accepted and implemented same.

(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.

4.5  Protection of Confidential Information. The Receiving Party shall:

(i) protect and safeguard the confidentiality of all Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care,

(ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement or otherwise in any manner to the Disclosing Party’s detriment, and

(iii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, subcontractors and agents who need such access for purposes consistent with this Agreement.

4.6 Non-disclosure.  Neither Party shall disclose these Terms or any SOW and/or other contract documents to any third-party other than its affiliates, legal counsel, and accountants without the other Party’s prior written consent.

4.7 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.

4.8 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.

4.9 Return or Destruction of Confidential Information. Upon request, each Party agrees to promptly return the other Party’s Confidential Information in its possession, custody or control, or to certify the deletion or destruction of Confidential Information; provided, however, that the Receiving Party may retain a copy of any Confidential Information to the extent (a) required by applicable law or (b) it would be unreasonably burdensome to destroy.  In the event that return or destruction of Confidential Information is unduly burdensome, or not feasible, the Parties shall extend the protections of these Terms to the retained Confidential Information.

You agree to hold harmless and Indemnify MSP against Your violation of any of the terms and conditions included in the subject EULA.

  1. MSP’S EMPLOYEE’S, AGENTS OR SUBCONTRACTORS.  You acknowledge that MSP has incurred substantial recruitment, screening, training, and administrative expenses with respect to its agents, including its employees, vendors and independent subcontractors.  From the Effective Date of the last SOW and up to one (1) calendar year after the date of termination of any SOW, You shall not hire or contract directly or indirectly with any of the MSP’s employees, agents or subcontractors who have communicated with and/or worked on any Service for You.  You and MSP mutually acknowledge and agree that it would be impractical and extremely difficult to ascertain the amount of monetary damages that would be caused by a breach by You of this provision.  Therefore, You and MSP mutually agree that in the event of a breach by You in any way of this provision, You shall pay to MSP as liquidated damages, an amount equal to One Hundred Fifty Thousand Dollars ($150,000.00).  this amount is an effort by both parties to properly and reasonably assess the damages that MSP would suffer as a direct result of a breach by You, taking into account the following facts and circumstances: (a) an average employee working for MSP will generate significant net revenue for the MSP and remain employed by the MSP for an extended period of time; (b) MSP will lose significant revenue and incur significant costs in connection with attempting to replace such employee; (c) there is no guarantee that such employee can be replaced; and (d) accurately assessing the value of such employee to the MSP upon such breach is virtually impossible.  In light of these circumstances, You and MSP mutually agree that this is liquidated damages provision represents reasonable compensation to MSP for the losses that it would incur due to any such breach.  You and MSP further acknowledge and agree that nothing in this paragraph shall limit MSP’s rights to obtain injunctive relief or any other damages including, but not limited to punitive, consequential, special, or any other damages, as may be appropriate in connection with Your breach of this section.
  1. WARRANTY.  MSP warrants that it or its contracted subcontractors, will perform the services substantially in accordance with the specifications set forth whether under these Terms, SOW, and/or other contract documents or otherwise in connection with any of them.  For any breach of the foregoing warranty, MSP or its contracted subcontractors, will exercise commercially reasonable efforts to re-perform any non-conforming services that were performed within the ten (10) business day period immediately preceding the date of Your written notice to MSP specifying in reasonable detail such non-conformance.  If MSP concludes that conformance is impracticable, then MSP will refund all fees paid by You to MSP hereunder, if any, allocable to such nonconforming Services.

Notwithstanding any provision to the contrary in these Terms, any warranty offered and provided directly by MSP product shall be deemed null and void if the applicable product is (i) altered, modified or repaired by persons other than MSP, including, without limitation, the installation of any attachments, features, or devices not supplied or approved  by  MSP (ii) misused, abused, or not operated in accordance with the specifications of MSP or the applicable manufacturer or creator of the hardware or product, or, (iii) subjected to improper site preparation or maintenance by persons other than MSP or persons approved or designated by MSP.

Notwithstanding the above, MSP does not warrant its products or services beyond a reasonable standard or skill consistent with industry standards.  MSP does not guarantee or promise any cost savings, profits, or returns on investment.

  1. SOFTWARE HARDWARE & SECURITY. You understand and agree that data loss or network failures may occur, whether or not foreseeable.  In order to reduce the likelihood of a network failure You must maintain proper security for Your computer and information system including software and hardware updates.  You will adhere to software and hardware updates and maintain specific security standards, policies, procedures set forth by the NIST Cybersecurity Framework available at https://www.nist.gov/cyberframework.
  1. CLIENT CYBER SECURITY.  It is understood that within the Services provided it is not the intent, nor does the MSP provide any type of internet security monitoring, cyber security monitoring, cyber terrorism monitoring, or other cyber threats for You unless otherwise specified in the Scope of Work or other contract documents.  As cyber threats are always evolving it is strongly recommended that You engage the services of a cyber protection third-party vendor to monitor the cyber controls and cyber activities in Your System.  In no event, including the negligent act or omission on its part, shall MSP, whether under these Terms, a SOW, other contract documents or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom.
  1. 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 Your data is breached because of the distribution of unsolicited email, direct mail, facsimiles, telemarketing or because of the collection of information by means of any form of electronic malware, wiretapping, bugging, video cameras or identification tags.
  1. EXTRAORDINARY EVENTS.  In no event shall MSP or its contracted subcontractors, whether under these Terms, an SOW, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any failure or malfunction of electrical, mechanical or telecommunications infrastructure and equipment or services, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God, national or global pandemic or other physical event.
  1. 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. You and any of your affiliates and each of their respective agencies, employees, officers, directors, members, shareholders, nominees, consultants, successors, and assigns (collectively, the “Releaseor Parties”) agrees to the fullest extend permitted by law and except as otherwise noted in these terms, agrees to release MSP and any of their affiliates and each of their respective agencies, employees, officers, directors, members, shareholders, nominees, consultants, subcontractors, successors, and assigns (collectivly, the “Released Parties”) for special, incendental or consequential damages, indirect damages, loss of good will or business profits, work stoppage, data loss, computer failure, or malfunction, any and all other commercial damages or loss, or exemplary or punitive damages. MSP’s aggregate liability relating to any of the services shall be quantified in the SOW or other contract documents. MSP shall not be liable to you for any delay in delivery or performance, or failure to deliver or perform at or within the deadlines set forth in these terms.
  1. MUTUAL INDEMNIFICATION AND HOLD HARMLESS.  Each party agrees to the fullest extent permitted by law shall at all time 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, subcrontractors, consultants, successors and assigns (follectevly, the “Muttally Idemnified 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, ciolations, fines and penalties (including without limitation, court costs, reasonable attorney’s fees and any other reasonable costs of litigation) (Herinafter 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. 

  1. MSP INSURANCE.  MSP agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by these Terms and by law.  Without limiting the foregoing, to the extend this Agreement creates exposure generally covered by the following insurance policies, MSP will maintain at its own sole cost and expense at least the following insurance covering its obligations under this Agreement: (a) Commercial General Liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury, in an amount not less than One Million Dollars ($1,000,000) per occurrence; (b) Business Automobile Liability for hired and non-owned vehicles in an amount of not less than One Million Dollars ($1,000,000) for each accident; (c) Workers Compensation at statutory limits; and (d) Professional Liability Insurance covering errors and omissions and wrongful acts in the performance of the Services.  Such insurance will bear a combined single limit per occurrence of not less than One Million Dollars ($1,000,000).MSP shall have You included in the Professional Liability policy as an additional insured. Such status will provide protection, subject to the policy terms and conditions, where liability is imposed on You as a result of the wrongful act of MSP.
  1. YOUR INSURANCE.
  1. Commercial Property Insurance. You shall secure at Your own cost and expense Property Insurance for Your equipment that is part of the provisions of the service agreement.
  1. Cyber Insurance.  It is strongly recommended that you shall secure and maintain for the duration of the contract Cyber Liability Insurance to insure Your cyber exposures. Specific limits and coverages should be evaluated by a qualified insurance broker or risk manager to determine Your specific coverage and policy limit requirements. A minimal $1,000,000 Policy per occurrence/aggregate limit is strongly recomended.
  1. Mutual Waiver of Subrogation.  To the extent permitted by law, each party waives all rights against the other for recovery of damages to the extent these damages are covered by the workers compensation (to the extent permitted by law) and employers liability, professional liability, general liability, property insurance, commercial umbrella/excess, cyber or other commercial liability insurance btained by either party. Client will not hold MSP, its subcontractors and/or third-party service providers responsible for such losses and will confirm that yourinsurance policies referenced above provide for the waiver of subrogation included in the terms of service.

Except for the warranties made by MSP in section 11, which are mimited warranties and the only warranties provided to client, the services and deliverables are provided strictly “as-is”. MSP dies not make any additional warranties, expressed, implied, arising from course of dealing or usage of trade, or statutory, as to the deliverables or services provided hereunder, or any matter whatsoever. The parties disclaim all warranties of merchantability, fitness for a particular purpose, satisfactory quality, title and non-infringement.

MSP does not warrant that the services or any deliverables will meet any of your requirements not set forth herein, that any deliverables will operate in the combinations that you may select for use, that the operation of any deliverables will be uninterrupted, secure or error-free, or that all errors will be corrected. If per-production (E.G. “Alpha” or “Beta” releases of software are provided to you, such copies are provided “As-Is” without warranty of any kind.

No statement by any MSP employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify these Terms in any way whatsoever.

Client                                                                                                     MSP – Bourn Technology

By:___________________________________                           By:___________________________________

Print: _________________________________                           Print: Dennis Bourn

Date: _________________________________                           Date: _________________________________

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