Master Services Agreeement

This Master Services Agreement (this “Agreement”) is between IT Support Specialists, Inc., an Ohio corporation that maintains an office for business at 9 N Rocky River Dr. Berea, OH 44017 (“Company”), and the business entity whose name and authorized signatory appear in the signature block of the attached Proposal (“Client”).

1 AGREEMENT; STATEMENTS OF WORK.

a Agreement. During the term of this Agreement, Company will provide Client with the services (collectively, the “Services”) that are agreed upon in writing between Company and Client, as referenced and incorporated, as stated in the attached proposal.

2 SERVICES; GENERAL.

a Scope. Products or services that are not explicitly offered in this Agreement will be considered to be “out of scope”, and will not be provided to Client unless Company agrees, in writing, to provide such services to Client.

b Additional Services. If Company is requested, and agrees, to perform work beyond the description of services, then parties shall agree on a fee for said Additional Services prior to the commencement of any work. If the parties agree to Additional Services, as described in this section, then both parties hereby agree to execute any and all work orders and/or agreements required by the Company, and upon signature, the agreement for Additional Services shall become part of this Agreement, and incorporated herein by reference. The parties acknowledge, understand and agree that electronic signatures or acknowledgements shall constitute a valid signature for purposes of this Agreement.

c Managed Service Agreement. The Parties hereby agree to enter into a Managed Service Agreement (“MSA”), which is hereby incorporated by reference in the attached proposal. The MSA shall detail the services that are to be performed in accordance with the relationship created under this Agreement. In the event any of the terms of this Agreement and the MSA shall be contradictory, then the parties hereby agree that the terms of the MSA shall prevail.

d Right to Update and Replace Support Assets. Company reserves the right to update, replace, or reassign any support assets, including but not limited to staff, operational processes, and applications used for monitoring, security, and client support. Such updates and replacements will be made at Company’s discretion to maintain or improve service quality, efficiency, and security. Company shall notify Client of any significant changes that may impact the delivery of services.

3 FEES; PAYMENT.

a Fees. Unless otherwise agreed in writing between the parties, Client shall pay all fees (“Fees”) for Services being provided to Client. Payment shall be due upon invoice from Company to Client, Except for recurring Charges which will be automatically debited between the 1st and 5th of each month. Notwithstanding the foregoing, Company reserves the right to require advance payment for any products, parts, components or related materials that Client may require prior to such products, parts, components or related materials being delivered or provided to Client.

b Remedies. In the event that payment is not timely received by Company, then Company may implement any or all of the following remedies, which shall be cumulative and not exclusive:

1 Immediately suspend all Services or portions thereof until all outstanding payments are received by Company; or,

2 Charge interest on the unpaid invoice amount(s) until and including the date payment is received, at the lower of either 1.5% per month or the maximum allowable rate of interest permitted by applicable law.

c Collection. Client shall be liable for all reasonable attorneys’ fees as well as all costs incurred in Company’s collection of past due balances including but not limited to collection fees, filing fees and court costs.

4 TERM; RENEWAL.

This Agreement shall commence on the date the agreement is signed, unless otherwise and shall continue for a term selected in the selected terms within the attached proposal. The pricing shall increase 6% upon the execution of the new term. The parties agree that this term shall automatically renew unless either party provides the other party with written notice of its intent to not renew. Said notice shall be made at least 30 days prior to the expiration of the then current term.

5 TERMINATION.

This Agreement may be terminated upon 30 day written notice to Company, only upon the occurrence of the following: (1) Company’s failure to meet the terms and conditions of this Agreement, (2) after written notice by Client to Company of said failure, AND (3) Company’s failure to resolve or remedy said failure within 30 days thereof. Upon termination, as described herein, neither party shall have any duty or obligation to the other party, except that Client agrees to pay Company for any outstanding invoices accrued prior to the date of termination. Company may terminate the agreement with Client with 30 days written notice to Client.

6 WARRANTIES; LIMITATION OF LIABILITY.

a Except as otherwise expressly stated in this Agreement, all Services are provided to Client “as is”. Client understands and agrees that with the exception of the warranties and remedies expressly stated in this Agreement, no warranties shall apply with regard to the Services or any other product or service provided by Company to Client. All implied warranties arising from or related to the Services are hereby waived by Client, including but not limited to implied warranties of merchantability, fitness for a particular purpose and non-infringement. Company is not and shall not be held liable as a guarantor of the performance or quality of the Services except as otherwise expressly stated in this Agreement. Unless expressly stated by Company in writing, Company does not warrant or guarantee that the Services will be provided error-free, or that errors (if any) will be corrected in any particular time frame.

b IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR LOST REVENUE, LOSS OF PROFITS, SAVINGS, OR OTHER INDIRECT OR CONTINGENT EVENT-BASED ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR ANY SERVICES PERFORMED OR SUPPLIED HEREUNDER, ANY LOSS OR INTERRUPTION OF DATA, TECHNOLOGY OR SERVICES, OR FOR ANY BREACH HEREOF OR FOR ANY DAMAGES CAUSED BY ANY DELAY IN FURNISHING SERVICES UNDER THIS AGREEMENT, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S AGGREGATE LIABILITY TO CLIENT FOR DAMAGES FROM ANY AND ALL CAUSES WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR NEGLIGENCE, SHALL BE LIMITED TO THE AMOUNT OF ACTUAL DIRECT DAMAGES INCURRED BY CLIENT, NOT TO EXCEED THE AMOUNT OF FEES PAID BY CLIENT TO COMPANY FOR THE SERVICES DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE CAUSE OF ACTION ACCRUED.

Indemnification. Client agrees to indemnify, defend and hold Company harmless from and against any and all loss, damage, cost, expense or liability, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to the negligent acts, negligent omissions or intentional wrongful misconduct of Client or Client’s employees or subcontractors, and from any Damages arising from or related to Client’s uncured, material breach of this Agreement. Client further agrees to indemnify, defend, save and hold harmless Company, its offices, agents and employees, from all Damages arising out of any alleged infringement of copyrights, patent rights and/or the unauthorized or unlicensed use of any material, property or other work in connection with the performance of the Services; provided however, that such Damages are the direct result of Client’s actions and not due to Company’s intentional or grossly negligent actions. Company shall not be liable in any manner whatsoever for nonperformance of this Agreement if such nonperformance is attributable to matters beyond the reasonable control of Company, such as accidents, riots, national emergencies, Acts of God, other acts of Force Majeure, including labor disputes, strikes, and picketing. Further, Company shall not be liable for any delays caused by weather. Company shall also not be liable or responsible for consequential or punitive damages. It is agreed that under any and all circumstances the limit of Company’s liability will be the fees paid to Company by Client pursuant to the terms of this Agreement.

Copyrights; Intellectual Property. Company is the owner and/or licensor of all applications, software and works of authorship provided by Company to Client pursuant to this Agreement (“Company’s IP”). Client shall not receive any ownership rights in Company’s IP under any circumstances. Client is hereby granted a limited, non-exclusive, worldwide right to use Company’s IP for purposes authorized under this Agreement or any relevant SOW. Client is and shall remain the owner and/or authorized licensee of all applications, software, data, information and materials that Client uploads to or installs on the Client Network, or otherwise provides to Company pursuant to this Agreement (“Client’s IP”). Company shall not receive any ownership rights in Client’s IP under any circumstances. Company is hereby granted a limited, non-exclusive, worldwide right to use Client’s IP for purposes authorized or required under this Agreement or any relevant SOW. All of the limited rights described above shall automatically terminate upon the termination of this Agreement.

Cyber Security Insurance. The Client agrees to maintain a comprehensive cyber security insurance policy during the term of this Agreement. This policy should cover potential damages and losses resulting from cyber incidents, including but not limited to data breaches, ransomware attacks, and other cyber threats. The Client shall provide proof of such insurance upon request by the Company.

Limitation from Cyber Attacks. The Company shall not be held liable for any damages or losses resulting from cyber attacks, including but not limited to data breaches, ransomware attacks, and other malicious activities. The Client acknowledges that while the Company will implement reasonable security measures to protect the Client’s data and systems, no system is completely immune to cyber threats. The Client agrees to indemnify and hold the Company harmless from any claims, damages, or losses arising from such cyber attacks.

7 UPTIME; SLA; REMEDIES.

a Uptime. Unless otherwise agreed in writing, Company warrants and represents that during the term of this Agreement, the Services will be available to Client 99% of the time as measured over a calendar year, except for (i) periods of Scheduled Downtime, (ii) downtime due to Client-side occurrences (described below), (iii) outages or issues arising from or related to a Force Majeure event, or (iv) outages or issues arising from or related to (or caused by) any third party service provider/vendor utilized by Client; and (v) downtime exempted under the Startup Exception (described below). All of the foregoing service level descriptions and exclusions shall be collectively referred to as the “Service Levels”.

b Scheduled Downtime. For the purposes of this Agreement, Scheduled Downtime shall mean those hours, as agreed upon by Company and Client.

c Client-Side Occurrences. Notwithstanding any provision to the contrary, Company shall not be responsible for any delays or deficiencies in the Services to the extent that such delays or deficiencies are caused by Client’s action or omissions, or due to equipment or services that are not provided or controlled by Company, including but not limited to telecommunication lines, Client-side equipment, etc. In the event that such delays or deficiencies occur, Company shall be permitted to extend any relevant deadline as Company deems necessary to accommodate such delays or deficiencies.

d Exemption. The parties acknowledge and agree that for the first thirty (30) days following the Effective Date of the applicable Schedule or SOW, the Service Levels in this Section shall not apply to Company, it being understood that there may be unanticipated downtime or delays due to Company’s initial startup activities with Client (the “Startup Exception”).

8 CONFIDENTIALITY.

a Defined. For the purposes of this Agreement, Confidential Information shall mean any and all non-public information provided to Company by Client, including but not limited to Client’s customer data, customer lists, internal Client documents, and related information. Confidential Information shall not include information that: (i) has become part of the public domain through no act or omission of Company, (ii) was developed independently by Company, or (iii) is or was lawfully and independently provided to Company prior to disclosure by Client, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.

b Use. Company shall keep Client’s Confidential Information confidential, and shall not use or disclose such information to any third party for any purpose except (i) as expressly authorized by Client in writing, or (ii) as needed to fulfill Company’s obligations under this Agreement. If Company is required to disclose the Confidential Information to any third party as described in part (ii) of the preceding sentence, then Company shall ensure that such third party is required, by written agreement, to keep the information confidential under terms that are at least as restrictive as those stated in this Section.

c Due Care. Company shall exercise the same degree of care with respect to the Confidential Information it receives from Client as Company normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases shall be at least a commercially reasonable level of care.

d Compelled Disclosure. If Company is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, Company shall immediately notify Client in writing of such requirement so that Client may seek a protective order or other appropriate remedy and/or waive Company’s compliance with the provisions of this Section. The foregoing notice provision shall be waived in the event that a court order prevents Company from disclosing such facts or circumstances to Client. Company will use its best efforts, at Client’s expense, to obtain or assist Company in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, Company may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that Company has been advised by written opinion of counsel reasonably acceptable to Company that it is legally compelled to disclose.

e Government Requirements: Company states that all information shall be kept confidential, and Company shall abide by and follow any rules, regulations, or procedures as promulgated by any local, state, or federal authority, such has the Health Insurance Portability and Accountability Act (HIPPA).

9 MISCELLANEOUS.

a Good Faith. For all intents and purposes of this Agreement, the parties hereby agree to deal in good faith with one another throughout the term of this Agreement.

b Assignment. This Agreement may not be assigned or transferred by Client without the prior written consent of Company. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns.

c Severability. If any provision contained in this Agreement is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.

d Other Terms. Company shall not be bound by any terms or conditions printed on any quote, proposal, purchase order, invoice, memorandum, or other written communication between the parties unless such terms or conditions are incorporated into either a duly executed Schedule or SOW or an amendment in which the parties expressly and specifically state that they intend to amend or modify this Agreement.

e No Waiver. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, shall not constitute an Agreement to waive such terms with respect to any other occurrences.

f Merger. This Agreement, together with the Schedules and any applicable SOW(s), sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. Any document that is not expressly and specifically incorporated into this Agreement shall act only to provide illustrations or descriptions of Services to be provided, and shall not act to modify this Agreement or provide binding contractual language between the parties. Company shall not be bound by any agents’ or employees’ representations, promises or inducements not explicitly set forth herein.

g Force Majeure. Company shall not be liable to Client for delays or failures to perform its obligations under this Agreement because of circumstances beyond its reasonable control. Such circumstances include, but shall not be limited to, any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, acts of God, or any other events beyond the reasonable control of Company.

h Non-Solicitation. Client acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, Client will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of Company’s employees or subcontractors to discontinue or reduce the scope of their business relationship with Company, or recruit, solicit or otherwise influence any employee or agent of Company to discontinue such employment or agency relationship with Company. In the event that Client violates the terms of the restrictive covenants in this Section, the parties acknowledge and agree that the damages to Company would be difficult or impracticable to determine, and agree that in such event, as Company’s sole and exclusive remedy therefore, Client shall pay Company as liquidated damages, and not as a penalty, an amount equal to fifty percent (50%) percent of that employee or subcontractor’s first year of base salary with Client (including any signing bonus).

i Survival. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement shall survive.

j Governing Law; Venue. This Agreement shall be governed by, and construed according to, the laws of the State of Ohio.

k No Third Party Beneficiaries. The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.

l Usage in Trade. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to this Agreement shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement.

m Notices. Where notice is required to be provided to a party under this Agreement, such notice shall be sent to the address of the recipient stated in the opening paragraph of this Agreement or such other address as the parties may designate from time to time in writing. Such notice shall be deemed delivered upon receipt by the receiving party, or refusal of delivery, when deposited in the United States Mail, first class mail, certified or return receipt requested, postage prepaid.

n Independent Contractor. Each party is an independent contractor of the other, and neither is an employee, partner or joint venturer of the other.

o Subcontractors. Company may subcontract part or all of the Servicesto one or more third parties provided, however that Company shall be responsible for, and shall guarantee, all work performed by any Company-designated subcontractor as if Company performed such work itself.

p Counterparts. The parties may execute and deliver this Agreement in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall be deemed to be one agreement. Each party acknowledges and agrees that this Agreement is intended to be executed and transmitted to the other party via electronic means.

IT Support Specialists, Inc. - MANAGED SERVICE ADDENDUM TO MASTER SERVICES AGREEMENT

1. APPLICABLE COVERAGE, SERVICE, AND SERVICE LEVELS.

a Trouble Tickets must be opened via our customized portal, email, or by phone if internet is unavailable. Each call will be assigned a Trouble Ticket number for tracking.

b Working Hours. Helpdesk and Vendor Management of Client’s IT networks will be provided to the Client by IT Support Specialists, Inc. between the hours of 8:00 am – 5:00 pm Monday through Friday, excluding public holidays. Network Monitoring Services will be provided 24/7/365. This includes all services qualifying under these conditions, as well as Services that fall outside this scope.

c Service Outside of Working Hours. IT Support Specialists, Inc. will respond to Client’s Trouble Tickets under the provisions of this agreement, and with best effort after hours or on holidays.

d Emergency Support. Emergency Support is included under the designatedservice agreements, with some limitations. The scope and limitations of Emergency Support are as follows.

Emergency Support is intended for remediation of mission critical outages and issues including but not limited to;
- Server Failures or Outages.
- Network Failures or Outages.
- Mission Critical Data, Applications, or Equipment Outages.
- Workstation outages that impact a critical deadline. Any issue that would cause severe negative impact to wait until the next business day to resolve.
Emergency Support may require onsite access to server or other on-premise equipment.
Client agrees to provide access to premises in order for IT Support Specialists to repair equipment. Delays in access shall not impact SLA for uptime.

e Response Times. Under the provisions of all three Managed Service Plans, we offer expedited response times based on the level of severity of the submitted issue.

All issues with be acknowledged within 15 minutes of submission, with an email response to the client.
Issue Levels
- Critical Priority – Service Unavailable
  - Severity: Service not available (all users and functions unavailable)
  - Acknowledgement: 60 Minutes
  - Actively Working: 60 Minutes
- High Priority – Significant Degradation of Service
  - Severity: Large number of users or (business critical functions affected)
  - Acknowledgement: 60 Minutes
  - Actively Working: Within 90 minutes
- Medium Priority – Limited Degradation of Service
  - Severity: Limited degradation of service (limited number of users or functions affected, business process can continue)
  - Acknowledgement: 60 Minutes
  - Actively Working: Within 1 business day (8-5 Mon-Fri excluding holidays)
- Low Priority – No Degradation of Service
  - Severity: Small service degradation (business process can continue, one user affected)
  - Acknowledgement: 60 Minutes
  - Actively Working: Within 2 business days (8-5 Mon-Fri)

f Monitoring Services Provided Under This Agreement.IT Support Specialists, Inc. will provide ongoing monitoring and security services of all critical devices as indicated in the Client Survey, and agreed upon in the selected IT Pro or IT Advantage service plan, within the attached proposal. IT Support Specialists, Inc. will document critical alerts, scans and event resolutions. Should a problem be discovered during monitoring, IT Support Specialists, Inc. shall make every attempt to make the client aware, and rectify the condition in a timely manner through remote means.

g Actual Liability Limitations. In no event shall IT Support Specialists, Inc. be held liable for indirect, special, incidental or consequential damages arising under this contract, including but not limited to loss of profits or revenue, loss of use of equipment, lost data, costs of substitute equipment, or other costs. IT Support Specialists, Inc. or its suppliers shall not be liable for any indirect, incidental, consequential, punitive, economic or property damages whatsoever (including any damages for loss of business profits, business interruption, loss of data or other pecuniary loss) arising out of this Agreement.

h Service Operations Disclaimer. Customer grants IT Support Specialists, Inc. authorization to view any data within the regular routine of the repair or system improvement. Customer also authorizes IT Support Specialists, Inc. to reasonably delete, change, and/or rewrite any necessary information to complete the system repair or improvement that is consistent with the standards and practices in the industry.

2. SUPPORT FOR HARDWARE AND SOFTWARE.

a. IT Support Specialists, Inc. shall provide support of all hardware and systems specified in the Client Survey, provided that all Software is Genuine, Currently Licensed, and Vendor-Supported. Should any hardware or systems fail to meet these provisions, they will be excluded from this Service Agreement. Should 3rd Party Vendor Support Charges be required in order to resolve any issues, these will be passed on to the Client after first receiving the Client’s authorization to incur them.

3. EXISTING ENVIRONMENT SUITABILITY REQUIREMENTS.

a Minimum Equipment Standards for Suitability. In order for Client’s existing environment to qualify for IT Support Specialists, Inc. ‘s Managed Services, the following requirements must be met:

All Servers with Microsoft Windows Operating Systems must be running A supported operating system that is included in Mainstream Support. Operating systems that have reached extended support are subject to support case fees for support from Microsoft. Systems that have gone past extended support may not be able to receive support. ITSS will use the Microsoft Lifecycle Policy published at https://support.microsoft.com/en-us/lifecycle
All Desktop PC’s and Notebooks/Laptops with Microsoft Windows Operating Systems must be running Windows 7 Pro or later, and have all of the latest Microsoft Service Packs and Critical Updates installed.
All Apple products must be running OS 10.11 or later and must not be on the vintage and obsolete products list found at https://support.apple.com/en-us/HT201624
All Server and Desktop Software must be Genuine, Licensed and Vendor-Supported.
The environment must have a currently licensed, up-to-date and Vendor-Supported Server-based Antivirus Solution protecting all Servers, Desktops, Notebooks/Laptops, and Email.
The environment must have a currently licensed, Vendor-Supported Server-based Backup Solution that can be monitored, and send notifications on job failures and successes.
The environment must have a currently licensed, Vendor-Supported Hardware Firewall between the Internal Network and Internet.
All Wireless data traffic in the environment must be securely encrypted.
All Equipment must be newer than five (5) years old and no older than six (6) years.

b Dealing With Chronically Failing Equipment. Experience has shown, equipment belonging to the client which has initially passed Minimum Standard Requirements for Service can reveal itself to become chronically failing. This means that the equipment repeatedly breaks down and consistently causes user and business interruption even though repairs are accomplished. Should this occur, while rare, client agrees to work constructively and positively with IT Support Specialists, Inc. to replace the equipment at additional cost through IT Support Specialists, Inc., otherwise the Chronically Failing Equipment will be excluded from the service agreement and service billed on an hourly basis.

4. CLIENT RESPONSIBILITIES

a Approval. In order to maintain an acceptable level of integrity and performance IT Support Specialists, Inc. should be notified of any desired alterations including, but not limited to the following; computers, mobile devices, network hardware, software, or any such modification that may interfere with the performance of the network.

b Accessibility. Client shall make reasonable efforts to provide IT Support Specialists, Inc. with access to all required facilities, hardware, and software required to service the account.

c Self Repairs. Client should consult self-repair options with a IT Support Specialists, Inc. staff member before attempting to perform it. If Client chooses to perform a self-repair, and any further issues are cause due to said repair, IT Support Specialists, Inc. may choose to charge outside of the scope of this agreement for assistance.

Let’s Get The Ball Rolling!

Give Us A Call At 216-771-1600 or Use The Contact Form Above To Schedule A Short Consult.

IT Support Specialist
9 N. Rocky River Dr.
Berea, Ohio 44017
www.itsupportspecialists.net
216-771-1600
info@itsscle.com