Terms

MASTER SERVICES AGREEMENT

This MASTER SERVICES AGREEMENT (“Agreement”) is made and entered into by and between ServePCPro (hereinafter “Company”), and the client that is executing this Agreement (hereinafter “Customer”) with ServePCPro and this Agreement shall govern the Services (as defined below) provided by ServePCPro for the Client as referenced herein. 

WHEREAS, Company is engaged in the business of providing a full range of information technology and consulting services; and  

WHEREASCustomer desires to retain Company to perform certain information technology services and functions; 

NOW THEREFORE, in consideration of the mutual promises, covenants and agreements contained herein, the parties agree as follows: 

1. AGREEMENT STRUCTURE 

1.1 This Agreement is a master information technology services contract that contemplates the performance of specific tasks and functions by the Company for the Customer.  In addition to the terms and conditions of this Agreement, the business arrangements between the Company and the Customer may also be documented in a Managed Services Provider Agreement (“MSP Agreement”) or Statement of Work (“SOW”). 

1.2 All of the terms of this Agreement shall apply to all services and functions performed by Company on or after the Effective Date, unless specifically modified by a clause in an executed MSP Agreement or SOW. 

1.3 Should there be any conflict between the provisions, agreements, terms and conditions of this Agreement and any executed MSP Agreement or SOW, then notwithstanding anything contained in this Agreement, the provisions, agreements, terms and conditions of the executed MSP Agreement or SOW shall govern and control. 

1.4 Any modification of this Agreement or any executed MSP Agreement or SOW, will be effective only if in writing and signed by both parties. Execution of any said modification will constitute a binding representation by each party that the signatory to said modification is authorized to legally and contractually bind the party thereto. 

2. TERM AND TERMINATION

2.1 Agreement Term.  The term of this Agreement shall commence on the Effective Date and will continue in effect for period of one (1) year (“Initial Term”) or until the expiration date of, if executed, any MSP Agreement (as described in Section 4.2) or the last SOW (as described in Section 4.1 hereof) has been completed.  

2.2 Termination of Agreement.  Either party may terminate this Agreement in its entirety upon thirty (30) days' advance written notice.

2.2.1 one of the parties shall be declared insolvent or bankrupt;  

2.2.2 a petition is filed in any court and not dismissed in ninety (90) days to declare one of the parties bankrupt and/or for reorganization under the Bankruptcy Law or any similar statute;  

2.2.3 Customer does not pay Company within thirty (30) days from receipt of ServePCPro’s invoices and/or otherwise materially breaches this Agreement;  

2.2.4 Company fails to perform its obligations under this Agreement, any executed MSP Agreement and/or any executed SOW and such failure continues for a period of thirty (30) days after written notice of the defaults.

Upon notice of termination, Company shall advise Customer of the extent to which performance has been completed, and deliver to Customer whatever Deliverables (as defined in Section 4.1) then exist, along with all Customer Materials (as defined in Section 6.5).  Customer shall pay for all services performed through the effective date of termination.   

2.3 Survival.  Sections 6, 7, and 8 hereof shall survive termination (regardless of the reason for termination) or expiration of this Agreement.

3. INDEPENDENT CONTRACTOR STATUS

3.1 Intention of Parties.  Company shall be an independent contractor and not an employee, agent, joint venturer, or partner of Customer.  Nothing in this Agreement shall be construed as establishing the relationship of employer and employee between Customer and Company for any purpose.  Further, Company and Customer agree that nothing in the Agreement and/or any executed MSP Agreement or SOW, will authorize or empower either party to speak for, represent, or obligate the other party in any way.

3.2 Each party shall pay, as required by law, all payroll or self-employment taxes and similar required payments and withholdings with respect to that party’s employees relating to the services performed hereunder.

3.3 Neither party shall provide the other party with any training, insurance, retirement, health, welfare, or other benefits usually afforded to employees or that may be inconsistent with Company’s status as an independent contractor.

4. SERVICES TO BE PERFORMED BY COMPANY

4.1 (if) SOWs.  The specific services to be performed by Company may be documented in a SOW signed by Company and by Customer.  Each SOW shall set forth, at a minimum, a description of the services to be performed, and the fees for the services to be performed, or other mutually agreed-upon price and payment terms (e.g., firm fixed price, progress payments based on deliverables, etc.).  Company shall render services and deliver reports and other deliverables (collectively “Deliverables”) in accordance with the timetable and milestones (if any) in the applicable SOW.  If any Deliverables are subject to acceptance testing by Customer, the SOW will so state and will describe the acceptance procedures.  In the event Company anticipates at any time that it will not reach a milestone or complete an assignment within the timetable prescribed by a SOW, Company shall promptly so inform Customer, submit proposed revisions to the timetable and milestones that reflect Company’s best estimates of what can realistically be achieved, and continue to work until otherwise directed by Customer.  Company shall also prepare and submit standard reports of its performance and its progress that are usual and customary in the industry at no additional charge to the Customer.   Should Customer request additional more extensive reporting, Company shall provide such extensive reporting on a billable basis.

4.2 (if) MSP Agreement.  The specific services and functions to be performed by Company may be documented in MSP Agreement signed by Company and by Customer.  The MSP Agreement shall set forth, at a minimum, a description of the services to be performed, and the fees for the services to be performed, or other mutually agreed-upon price and payment terms (e.g., firm fixed price, progress payments based on deliverables, etc.).  Company shall provide pricing for each user, device or services it is responsible for remote monitoring and management; maintenance schedules and additional services or functions defined in MSP Agreement.  Company shall render services and deliver reports and other Deliverables in accordance with the timetable and milestones (if any) in the applicable MSP Agreement. In the event Company anticipates at any time that it will not reach a milestone or complete an assignment within the timetable prescribed by a MSP Agreement, Company shall promptly so inform Customer, submit proposed revisions to the timetable and milestones that reflect Company’s best estimates of what can realistically be achieved, and continue to work until otherwise directed by Customer.

4.3 Method of Performing Services.   

4.3.1 Company will perform services in a professional, efficient, and conscientious manner.  

4.3.2 Company will determine the method, details, and means of performing its services hereunder, and Customer shall have no right to, and shall not, control specific details of the manner or method of accomplishing the services.  Customer may, however, require Company to observe the security, safety, and similar policies of Customer and of any third party on whose premises or equipment Company may perform the services.  In addition, Customer may exercise a broad general power of supervision and control over the results of the services performed by Company to ensure satisfactory performance, including the right to inspect, stop work, make suggestions as to the details of the work, and request modifications to the scope of the said SOW or MSP Agreement.

4.4 Acceptance Procedure.  Company shall perform reasonable discovery or assessment and provide findings/results to Client in writing.  Customer shall advise Company of the acceptance or rejection of said findings by Company in writing within two business days.  Any rejection by Customer shall allow Customer to determine whether to continue or cancel the specific services in the SOW or MSP Agreement.  

4.5 Scheduling.  Company will accommodate work schedule requests of Customer to the extent practicable.  Should Company be unable to perform because of illness, resignation, or any other causes beyond Company’s control, Company will use best efforts to resume work promptly.

5. COMPENSATION

5.1 Rates and Expenses.  The schedule of fee rates for services performed by Company shall be included in each SOW or MSP Agreement.  Unless otherwise specified in a SOW or MSP Agreement, any services requested by Customer and performed by Company that are not specified in a SOW or MSP Agreement will be billed at an agreed upon rate based on criteria of services requested, i.e “Emergency Rate” vs. “Scheduled Rate”.  Company will invoice for travel to Customer site(s) that is more than 60 miles from Company location stated in this Agreement at the rate of $50.00 per hour for the duration of the travel.  Except for reasonable travel, lodging, and meal expenses incurred in accordance with Customer’s expense reimbursement policies while traveling at Customer’s request, and except as otherwise agreed in the applicable SOW or MSP Agreement, Company shall be responsible for all its costs and expenses incident to the performance of services for Customer

5.2 Estimates.  Estimates of total fees for projects may be provided in a SOW or MSP Agreement, but Company does not guarantee these estimates unless so stated in the SOW or MSP Agreement as a fixed fee or not-to-exceed price.  Company will, however, notify Client in writing if it expects to substantially exceed, ten (10) percent, any estimate.  Customer will then be allowed to determine whether to continue or cancel the specific services in the SOW or MSP Agreement.  

5.3 Invoices and Payment.  Unless provided otherwise in a SOW or MSP Agreement (e.g., invoicing upon completion of milestones or upon acceptance of Deliverables), Company shall invoice Customer monthly for the services furnished and reimbursable expenses incurred hereunder.  Each invoice will include a breakdown of tasks performed, and of all reimbursable expense items.  Unless otherwise agreed in a particular SOW, Company’s fees are payable in full within thirty (30) days after receipt of the invoice.  Unless otherwise agreed in a particular MSP Agreement, said purchase price shall be paid in monthly installments with the first installment due upon execution of the applicable MSP Agreement. Each payment thereafter shall be due the first day of each calendar month for applicable services to be performed for that particular month. Late payments are subject to interest accrued at 3% per month thereafter.

6. INTELLECTUAL PROPERTY RIGHTS

6.1(a) Confidentiality and Use of Information.  Company will maintain in strict confidence, and use and disclose only as authorized by Customer or by this Agreement, all Customer Information (defined below) that it receives in connection with (i) this Agreement and or any executed SOW or MSP Agreement; and (ii) all Confidential Information that it receives in connection with this Agreement and/or any executed SOW or MSP Agreement.  These nondisclosure obligations shall continue as to any Confidential Information for so long as that information meets the definition of Confidential Information (as defined below).  Notwithstanding the foregoing restrictions, Company may disclose any information to the extent required by law or governmental authority, but only after Customer has been so notified and has had the opportunity to contest the requirement or to obtain reasonable protection for the information in connection with the disclosure. 

6.1(b) Definitions.   

(i) Confidential Information” means information, without regard to form, related to Customer’s business which is not commonly known by or available to the public and which (A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (B) is the subject of efforts to maintain its secrecy that are reasonable under the circumstances. Such information may include, but is not limited to, operating and financial data and plans, trade secrets, know-how, processes, documentation, software and computer programs and derivative works (including any methods of application software access or infrastructure access, whether or not such access is via “front door” or “back door” methods or portals), inventions (whether patentable or not), improvements, copyrightable material, strategic plans, samples, sales methodologies, sales targets, marketing approaches, or any other information, whether previously, presently, or subsequently disclosed to Project Worker, and which may be communicated in any form. 

(ii) Customer Information” means nonpublic information and Confidential Information obtained by Company through performing services under this Agreement and/or any executed SOW or MSP Agreement.  By way of illustration only and not to limit the foregoing, “Customer Information” includes Customer’s nonpublic information about:  (A) Deliverables, inventions, ideas, processes, formulas, data and data files and derivative works thereof, other works of authorship, know-how, improvements, discoveries, designs and techniques and the architecture, algorithms, and source and object code of software;  (B)  plans for research, development, new products, marketing, and business initiatives; and (C) budgets and financial statements, contract terms, prices and costs, suppliers and customers.  Customer shall identify Customer Information for Company upon request.  Customer Information shall not include: (1) information generally available to the public; (2) information released by Customer generally without restriction; (3) information previously known to Company or independently developed or acquired by Company without reliance on other protected information of Customer; or (4) information approved by Customer for use and disclosure by Company without restriction. 

(iv) Third Party Information” means Confidential Information of third parties (including but not limited to customers of Client) which Customer is under a duty to treat as confidential or to use only for limited purposes. 

6.2 Residual Rights of Company.  Except as specifically otherwise provided in Sections 6.1 and 6.3, Company shall be free to use and employ its general professional skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, or skills that are used generally by Company in its business and that do not constitute or inherently disclose Customer Information or Deliverables.   

6.3 Ownership of Deliverables.  Except to the extent otherwise specifically agreed in a SOW or MSP Agreement, all Deliverables shall belong exclusively to Customer.   

6.4 Ownership of Intellectual Property.   Except to the extent otherwise specifically agreed in a SOW or MSP Agreement, all copyrights, patents, trade secrets, or other intellectual property rights associated with any ideas, concepts, techniques, inventions, processes, software, programs, logic diagrams, reports, data files, methodologies, or other works of authorship and other tangible materials developed or created by Company in performing services under this Agreement, (collectively, the “Intellectual Property”) shall belong to Company.  Company automatically grants, at the time of creation of any Deliverable, without any requirement of further consideration, a perpetual, worldwide, royalty-free license and right to the Customer for all such Intellectual Property for use on or in connection with any Deliverable.   

6.5 Client Materials.  All right, title, and interest in any materials or information furnished to Company by Customer, and all derivative works or improvements thereof, are and shall remain the property of Customer. 

7. WARRANTIES AND LIMITATIONS

7.1 Warranties. Company warrants that:

7.1.1 In the performance of services hereunder, Company will not knowingly violate any applicable law, rule, or regulation; any contracts with third parties; or any third-party rights in any patent, trademark, copyright, trade secret, or similar right; and to the best of its knowledge Company is under no obligation to any third party that would in any manner prevent Company from performing the services required hereunder.

7.1.2 To the best of its knowledge Company has all rights necessary to convey to Customer the unencumbered ownership of the Deliverables; and

7.1.3 All services will be performed in a workmanlike and professional manner by Company having a level of skill in the area commensurate with the requirements of the scope of services to be performed, and such services and all Deliverables shall substantially conform to the specifications of the applicable SOW or MSP Agreement.

7.2 Disclaimer.  Except as is expressly set forth in Section 7.1 above, Company does not make any warranty, express or implied, with respect to the services rendered or the results obtained from its work, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose.  While Company will use all reasonable efforts to achieve a satisfactory outcome of the services, Company does not guarantee that specific results will be achieved and no warranty, express or implied is given as to any product, process, results, information, material, design, deliverable, advice, or any other work provided as a result of the services or functions.  

7.3 Limitation of Liability.  Without in any way limiting the foregoing, in no event shall either party be liable to the other party or any affiliates for any special, incidental, consequential, exemplary or punitive damages of any kind (including without limitation lost profits, lost savings, loss of data, and/or loss of business opportunities) arising out of or in connection with this Agreement, SOW or any MSP Agreement, Deliverable, or any services provided hereunder, whether based in contract, tort (including without limitation negligence) or otherwise, even if the party has been advised of the possibility of such damages or should have foreseen such damages. Serve PC Pro’s LIABILITY TO CUSTOMER HEREUNDER SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO SELLER PURSUANT TO THIS AGREEMENT FOR THE SERVICES AND ALL MATERIALS WHICH SELLER UTILIZES IN THE PERFORMANCE OF THE SERVICES.

7.4 Correction of Defective Work.   In the event that any work performed by Company, or any Deliverable hereunder, does not conform to the above warranties, Company shall promptly correct the same so that it does conform to the warranties.

7.5 Indemnification.  Each party agrees to defend, indemnify and hold harmless the other party, and the officers, directors, shareholders, members, associates, affiliates, employees, attorneys, servants and agents of the indemnified party from and against all claims, liabilities, damages, losses, causes of action, or expenses (including reasonable attorneys’ fees and costs), arising out of or relating to this Agreement or any executed MSP Agreement or SOW that are due to the negligent act or omission, or willful misconduct of the indemnifying party, its employees, agents, servants or subcontractors.

8. GENERAL PROVISIONS 

8.1 Notices.  Any notices hereunder may be given by email.

8.2 Assignment.  Neither party shall assign this Agreement without the prior written consent of the other, which consent will not be unreasonably withheld, except that either party may assign this Agreement without consent in connection with (a) the sale or transfer of all or substantially all of its business, or (b) the sale or transfer of substantially all of that part of its business to which this Agreement relates.  Each party shall give the other prompt written notice of such assignment or transfer.    

8.3 Return of Customer Materials.  All materials, data, equipment, badges, or other items provided by Customer to Company (“Customer Materials”) are to be used for the sole purpose defined in this Agreement or any executed SOW or MSP Agreement.  Upon termination of this Agreement or any executed SOW or MSP Agreement, regardless of reason for termination, upon Customer’s written request, or upon discontinuance of use of the materials by Company, Company will return to Customer the originals and all copies of the Customer Materials, and any other Customer Information.

8.4 Severability.  If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

8.5 Parties in Interest.  This Agreement is enforceable only by Company and Customer.  

8.6 Force Majeure.  Neither party shall be liable to the other for any failure or delay to the extent caused by events beyond the first party’s control (and which could not have been avoided in the exercise of reasonable diligence), including, failures or delays in transportation, equipment failures, labor disputes, accidents, acts of God, or government intervention.

8.7 Governing Law and Jurisdiction.  This Agreement will be governed by and construed in accordance with the laws of the State of Maryland, without reference to its conflicts of law rules.  Any civil action or legal proceeding arising out of or relating to this Agreement shall be brought exclusively in the appropriate state or federal courts located in the State of Maryland and the parties hereby consent to the jurisdiction of such courts. 

8.8 Successors.  This Agreement shall inure to the benefit of, and be binding upon, Company and Customer, their successors and permitted assigns.

9. COMMUNICATIONS

All notices required under this Agreement shall be in writing and sent to the addresses and persons set forth below, or to such other addresses as may be designated by a party in writing.  All notices shall be deemed received when: (i) delivered personally; or (ii) one (1) date after deposit with a commercial express courier specifying next day delivery, with written verification receipt. 

IF TO THE CUSTOMER 

To the address Customer provided when signing up for the Services 

IF TO ServePCPro 

This email address is being protected from spambots. You need JavaScript enabled to view it.