Master Services Agreement - Managed IT Services & Technology Consulting

Master Service Agreement

This Master Service Agreement (“Master Agreement”) represents an agreement made as of the Effective Date set forth on the Statement of Work (the “Effective Date”), by and between OSIbeyond L.L.C., located at 11921 Rockville Pike, Suite 210, Rockville, MD 20852 (“OSIbeyond”, “we” or “our”), and the company to which OSIbeyond is providing Services (the “Customer”).

1. Term of Engagement

OSIbeyond will, throughout the Term of this engagement, in consideration of the fees set forth below; serve as Information Technology Consultant to the Customer, performing such tasks/services as may be warranted. This Agreement will begin on the Effective Date and continue for one (1) year (“Initial Term”), and will be automatically renewed following the Initial Term on an annual basis (each a “Renewal Term”) unless terminated by a party. The Customer has the right to terminate this Agreement for convenience by providing OSIbeyond with written notice at least ninety (90) days’ prior to the end of the Initial Term or any subsequent Renewal Term. The Initial Term and any Renewal Term is the “Term”.
The Customer requests OSIbeyond to perform the following Services:

Managed IT Services, and depending on which Services Customer has chosen such Managed IT Services are subject to OSIbeyond’s subscription-based support model Service appendix located here or its retainer-based support model Service appendix located here.
Hosting Services, subject to OSIbeyond’s appendix located here.
Teams Telephony Services, subject to OSIbeyond’s appendix located here.
Equipment Lifecycle Rental Management Services, subject to OSIbeyond’s appendix located here.

C. OSIbeyond agrees to perform the work under this Agreement in a manner commensurate with sound industry practices and with commercially reasonable skill and care. OSIbeyond will determine the method, details, and means of performing the work to be carried out for the Customer. OSIbeyond shall be permitted to remove and replace any OSIbeyond Employee (defined below in Section 3(K)) performing Services hereunder so long as any OSIbeyond Employee removed is replaced by a OSIbeyond Employee trained and experienced so as to perform with capability equal to the OSIbeyond Employee removed. If the Customer determines that any OSIbeyond Employee is not appropriate for the work based on such OSIbeyond Employee’s specific or general skills and experience, the Customer shall notify OSIbeyond in writing of the reasons that it would like such OSIbeyond Employee replaced and OSIbeyond shall promptly investigate such claims and determine whether replacement of such OSIbeyond Employee is prudent.

D. OSIbeyond has the right to adjust the fees for its services each year during the Term by providing ninety (90) days’ prior notice of such fee adjustment to Customer. If the Customer has not terminated the Master Agreement by the end of such period of time, then the Customer is deemed to have agreed to OSIbeyond’s fee adjustment.

2. Confidentiality

It is understood that during the course of this engagement that each party (a “Disclosing Party”) may be furnishing to the other (a “Receiving Party”) proprietary and confidential information (“Confidential Information”). The Receiving Party agrees to treat as confidential any such Confidential Information and will not, without the prior written consent of the Disclosing Party, disclose the same to any third party. Notwithstanding the foregoing, the terms of this Paragraph A shall not apply to information which is or becomes generally available to the public, is required by law to be disclosed, or is obtained from any third party which is in possession of such information through no fault of the Receiving Party and is not under any obligation to the Disclosing Party to treat such information as confidential.
The Receiving Party shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Disclosing Party’s Confidential Information. Without limiting the foregoing, the Receiving Party shall take at least those same measures that it employs to protect its own confidential information of a similar nature and shall ensure that its employees who have access to Disclosing Party’s Confidential Information have signed a non-use and non-disclosure agreement in content at least as protective as the provisions of this Agreement, prior to any disclosure of Disclosing Party’s Confidential Information to such employees.
If the Receiving Party becomes legally compelled to disclose any of the Disclosing Party’s Confidential Information, other than pursuant to a confidentiality agreement, the Receiving Party will provide the Disclosing Party with prompt written notice, if legally permissible, and will use its commercially reasonable efforts, at the Disclosing Party’s sole cost and expense, to assist the Disclosing Party in seeking a protective order or another appropriate remedy.
The parties acknowledge that the covenants set forth herein are necessary for the protection of the Disclosing Party and that the scope of the covenants contained herein is reasonable and necessary. The parties understand that a breach of confidentiality would cause the Disclosing Party irreparable harm, the amount of which may be extremely difficult to estimate, and making monetary damages inadequate. The Receiving Party therefore agrees that, in the event of any breach or threatened breach of confidentiality, following written notice, the Disclosing Party shall have, in addition to any other remedy available, the right to apply to a court of competent jurisdiction for an injunction, or an order restraining any such breach or threatened breach of confidentiality, or for any and all other relief that the Disclosing Party deems appropriate, without the requirement for the Disclosing Party to prove actual damages or securing or posting of any bond or other security in connection with such equitable remedy.

3. General Terms and Conditions

Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the state of Maryland, without any references to its conflicts of law principles, and the courts of the state of Maryland (either federal or state) shall have exclusive jurisdiction over any matters arising pursuant to this Agreement, and all causes of action must be brought in such courts. The parties intend for this forum selection clause to be mandatory. Accordingly, the parties expressly waive any argument that the above exclusive jurisdiction and venue are improper or inconvenient.
Entire Understanding. This Agreement, including all Schedules and Appendices, whether attached hereto, or referenced hereby, (collectively, the “Agreement”), contains the entire understanding between the Customer and OSIbeyond with reference to the subject matter hereof and supersedes any prior understandings and agreements related thereto, whether written or oral. This Agreement may be executed in one or more counterparts, which together shall constitute a binding agreement. A signed facsimile or digitally signed document will create and constitute an original, legally binding agreement on the party sending the same.
Amendment. This Agreement can only be amended by a written document signed by both parties.
Jury Waiver. To the maximum extent of the law, in any action filed between the parties hereunder, the Customer and OSIbeyond both expressly waive their right to a jury trial.
Severability. If any provisions of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or the application of such provisions to persons or circumstances other than those to which it is held invalid, shall not be affected thereby.
Headings. The text in the headings of paragraphs and subparagraphs of this Agreement are for convenience of identification only and do not constitute a part of any such paragraph and/or subparagraph.
Invoices and Payments.

(i) The Customer agrees to pay for all Services provided by OSIbeyond. All fees for Services specifically exclude all applicable federal, state, and local taxes, fees or duties. OSIbeyond shall submit monthly invoices to the Customer, payable thirty (30) calendar days from the invoice date. OSIbeyond shall email, mail, or deliver the invoices to the attention of the person and at the address in OSIbeyond’s records, or as directed by the Customer.

(ii) The Customer shall pay interest to OSIbeyond on any amount not paid when due at the rate of 1.5% per month or the lawful maximum, whichever is lower. The Customer shall also be responsible for reasonable administrative, legal and court costs incurred by OSIbeyond in collecting late payments and late payment charges or in enforcing any other the other provisions of this Agreement. Without limiting its rights or remedies, OSIbeyond shall have the right to suspend or terminate any or all of the Services provided to the Customer if any payment is more than ninety (90) calendar days’ overdue.

(iii) If the Customer fails to timely pay the monthly fee specified in the Agreement, OSIbeyond will give Customer written notice of default. If the Customer fails to cure the default within thirty (30) calendar days of the date on such notice, OSIbeyond may terminate the appropriate Service agreement. Upon termination for any reason, the Customer agrees to pay OSIbeyond (a) all amounts then due and owing and (b) OSIbeyond’s actual collection costs, including reasonable attorney’s fees.

(iv) In the event the Customer fails to cure the default within the specified thirty (30) calendar days and OSIbeyond terminates the Service agreement or if the Customer terminates the Service agreement without cause prior to the end of the agreement term, then OSIbeyond does not have to provide Service.

(v) If the Agreement is ended prior to expiration of the Initial Term, the Customer agrees to pay (a) all amounts then due; (b) fifty percent (50%) of the amount due for the remainder of this Agreement; and (c) OSIbeyond’s actual collection expenses, including reasonable attorney’s fees.
Insurance. The Customer understands and acknowledges that OSIbeyond is not liable for any of the Customer’s damages related to data breaches or other like security incidents. Accordingly, the Customer understands that it is solely responsible for obtaining: (i) appropriate levels of cyber-security insurance and (ii) commercial general liability (CGL) insurance with high enough coverage to cover its indemnification obligations hereunder.
Limits on Liability.

(i) During the Term, OSIbeyond will take all commercially reasonable precautions to implement data backup services on any Customer data stored on OSIbeyond’s systems/servers it directly owns and controls. However, OSIbeyond is neither responsible nor liable for (i) unintentional damages or loss, either incidental or direct, caused by a loss of Customer data therein or (ii) backing up any data on systems/servers that OSIbeyond does not directly own and control. The Customer agrees that its use of OSIbeyond’s Services and the Internet is solely at the Customer’s risk. OSIbeyond assumes no responsibility for any commercial transactions attempted or completed by the Customer. OSIbeyond does not own or control all the various facilities and communication lines through which access may be provided. Accordingly, OSIbeyond assumes no responsibility for the security of the Customer’s computer system including, but not limited to, unauthorized user access, data breaches, or like security incidents. The Customer acknowledges and agrees that it is responsible for developing and maintaining its own procedures (apart from OSIbeyond’s Services) to protect the contents of its computer system, including making appropriate backup copies of its content. OSIbeyond is not responsible for transmission errors, disclosure, erasure, or corruption or security of the Customer’s data or content. OSIbeyond shall not be liable for the loss of data or for any losses resulting from the interruption of service.

(ii) OSIBEYOND’S SERVICES ARE PROVIDED ON AN “AS-IS, AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY OSIBEYOND, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY.

(iii) TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL OSIBEYOND, ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR INTERRUPTION OF SERVICE ARISING FROM OR RELATED TO THE SERVICES OR THIS AGREEMENT WHETHER FOR, AMONG OTHER THINGS, BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM, AND WHETHER LIABILITY IS ASSERTED IN, AMONG OTHER THINGS, CONTRACT OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT PRODUCT LIABILITY) WHETHER OR NOT OSIBEYOND HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE

(iv) OSIBEYOND’S LIABILITY HEREUNDER SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE CHARGE PAID BY THE CUSTOMER FOR SERVICES UNDER THIS AGREEMENT, OR IN THE CASE THAT THE CLAIM PERTAINS TO A PARTICULAR SERVICE, THE CHARGE PAID BY THE CUSTOMER FOR THE PARTICULAR SERVICE TO WHICH THE CLAIM PERTAINS (THE “AFFECTED SERVICE”), SUCH CHARGE TO BE CALCULATED DURING THE PERIOD FROM EXECUTION OF THE AGREEMENT OR THE ADDENDUM PERTAINING TO THE AFFECTED SERVICE TO THE DATE A CLAIM IS MADE. THE CUSTOMER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE.
Indemnification.

(i) OSIbeyond hereby agrees to indemnify, defend and hold harmless the Customer, and its directors, officers and employees from and against any and all liability, loss, cost, or other like damage (“Damage”), from third party claims, liens, judgments, penalties, fines, settlement costs, investigation costs, the cost of consultants and experts, attorneys’ fees, court costs and other legal expenses, insurance policy deductibles and other expenses (collectively “Claims”) arising out of or related to (a) any intentional or grossly negligent act or omission of OSIbeyond or its officers, directors, employees, agents or subcontractors, or (b) OSIbeyond performance under this Agreement, unless such Claim is the result of acts or omissions on the part of the Customer or its agents or employees.

(ii) The Customer hereby agrees to indemnify, defend and hold harmless OSIbeyond, and its directors, officers and employees from and against any and all Damage from third party Claims arising out of or related to (a) any intentional or grossly negligent act or omission of the Customer or its officers, directors, employees, agents or subcontractors, or (b) the Customer’s performance under this Agreement, unless such Claim is the result of acts or omissions on the part of OSIbeyond or its agents or employees.

(iii) The parties’ obligations under this Section 3 shall survive the expiration or termination of this Agreement.
Independent Contractor Status. It is understood and agreed that OSIbeyond is engaged by the Customer as an independent contractor, solely to provide the Services described herein. Employees, agents and independent contractors of OSIbeyond provided to the Customer to render Services hereunder (“OSIbeyond Employees”) shall remain in the employ of OSIbeyond and shall not be deemed agents or employees of the Customer. Nothing contained in this Agreement nor the performance of Services contemplated hereby, or otherwise, shall create a fiduciary duty on the part of OSIbeyond to the Customer, nor shall OSIbeyond have any duties, obligations or liability to security holders of the Customer or any third party in connection with its engagement hereunder.
Non-Solicitation.

(i) During the Term of this Agreement, and for one (1) year thereafter, the Customer shall not induce or solicit (directly or indirectly) any OSIbeyond Employees and/or independent contractor hired by OSIbeyond to leave the employ of OSIbeyond or engage (directly or indirectly) the services of any such person without the prior written consent of OSIbeyond.

(ii) The Customer acknowledges that the restrictions contained in this Section L are necessary for the protection of the OSIbeyond’s business and goodwill and are considered by the Customer to be reasonable for such purpose. The Customer acknowledges that any breach of this Section or threatened breach will result in irreparable injury to OSIbeyond and that OSIbeyond will be entitled to all remedies available in law and equity to prevent such breach or threatened breach. In addition to any other remedies available to OSIbeyond at law or equity, OSIbeyond may seek to (i) enjoin the Customer from any breach of this Section without the need to post a bond or other security or prove actual damages and (ii) obtain from the Customer any sums or other value received by the Customer arising from a breach of this Section. In connection with any action by OSIbeyond to enforce its rights under this Section, OSIbeyond shall be entitled to recover its reasonable attorneys’ fees and costs from the Customer.
Termination. Either party shall have the right to terminate this Agreement for the following reasons: (i) if the other party hereto breaches any material obligation under this Agreement and does not cure the same to the reasonable satisfaction of the non-breaching party within thirty (30) calendar days after written notice of such breach or (ii) if the other party hereto either (a) terminates or suspends its ongoing business; (b) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes, foreign or domestic that is not dismissed within one hundred twenty (120) calendar days, (c) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (d) winds up or liquidates its business, voluntarily or otherwise.
No Waiver; Cumulative Remedies. No failure or delay on the part of either party in exercising any right, power or remedy hereunder or under or in connection with this Agreement or to insist upon the strict performance of any term of this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy under or in connection with this Agreement. The remedies in this Agreement are cumulative and not exclusive of any remedies provided by law.