Master Services Agreement

This Managed Services Agreement (“MSA”) is between (“Client”) and Partnered Solutions IT (“PSIT”).

SECTION 1 MANAGED SERVICES

PSIT will perform managed information technology services and marketing services (“Managed Services”) listed on a Statement of Work (“SOW”) and each SOW shall be considered an addendum and attachment to this MSA. Each SOW will include the Managed Services to be performed during a specific contractual period (“Contractual Period”) described on the SOW. It is expressly agreed and understood that Managed Services only include the services listed on the applicable SOW, and do not include Hourly Services (“Hourly Services”) (defined in Section 2.5).

In case of contradiction between the terms of the Master Service Agreement and the terms of an SOW, the terms of the SOW shall control.

Checked boxes only signify initially agreed upon services, additional services can be added to the Client’s Managed Services over the course of the Contractual Period through written correspondence, including email, between Client and PSIT.

Unless otherwise directed by the Client in a written and mutually agreed-upon retention policy, PSIT will default to retaining all data indefinitely during the term of the services rendered under this agreement. Any changes to this policy must be documented in writing and agreed upon by both parties.

SECTION 2 COMPENSATION

2.1 Set-up Fee. Prior to receiving Managed Services, Client will pay PSIT a one-time set-up fee as outlined in the SOW (“Set-up Fee”) or a deposit towards the Set-up Fee as outlined in the SOW.

2.2 Managed Services Fee. Client will pay PSIT the monthly fee (“Managed Services Fees”) for Managed Services described on the applicable SOW.

2.3 Expenses, Fees and Taxes. Client will reimburse PSIT for agreed upon fees and expenses incurred by PSIT in connection with the performance of the Managed Services described on the applicable SOW, including but not limited to any licensing fees. Additionally, Client shall pay all sales, use, gross receipts, excise, occupational, access, bypass, franchise, and other federal, state, and local taxes and assessment, fees, charges, and surcharges, however designated, imposed on or related to the provision, or sale of Managed Services described on the applicable SOW; provided, the foregoing shall not require the Client to Pay or reimburse PSIT for income or other taxes arising from its general business operations.

2.4 Payment for Services. Every month PSIT will send an invoice to Client for Managed Services Fees, Hourly Services, and expenses incurred in the prior month, and Client agrees to pay the invoice in full by the due date set forth on the invoice. PSIT reserves the right to charge a late fee and interest at the rate of twelve percent (12%) per annum if any invoice is not paid within thirty (30) days of delivery. In addition to any of its other rights and remedies, in the unlikely event that Client fails to pay its monthly invoice when due, PSIT may immediately suspend Managed Services and terminate this MSA after giving Client not less than five (5) business days’ notice of such suspension and termination. Client has fourteen (14) days from date of invoice to dispute any discrepancies; after fourteen (14) days, late fees are to be considered agreed to by Client.

2.5 Hourly Services Fee. It is expressly agreed that Client will pay PSIT on an hourly basis at its then-current rates list on the Current Hourly Rates Sheet (“Current Hourly Rates Sheet”).  Current Hourly Rates Sheet are subject to adjustment with thirty (30) days’ notice.

(a) Regular Service Hours (“Regular Service Hours”) are 8am to 5pm Pacific Time Monday through Friday excluding Federal Holidays (“Federal Holidays”) as determined by opm.gov. All labor outside of Regular Service Hours is billable at 1.5 times the Current Hourly Rates Sheet, with Federal Holidays billed at 2 times.
(b) PSIT bills in 15 minute increments, rounding up to the nearest quarter of an hour. PSIT maintains minimum service times of thirty (30) minutes for remote services, and one (1) hour for on-site services.

2.6 Annual Escalation. Effective July 1st of each calendar year following the execution of this Agreement, and on July 1st of each year thereafter during the term of this Agreement, all recurring fees under this Agreement, including but not limited to Managed Services Fees, shall automatically increase by the greater of (a) two percent (2%), or (b) the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U), U.S. City Average, All Items, as published by the U.S. Bureau of Labor Statistics, for March of the prior year to March of the current year.

Notwithstanding the foregoing, if the cost to PSIT of any third-party software, licensing, subscription, or vendor service directly utilized in the delivery of Managed Services to Client increases by more than the percentage specified above, PSIT may pass through such increases to Client on a dollar-for-dollar basis. PSIT will provide Client with reasonable written notice and supporting documentation of such vendor cost increases.

PSIT will provide notice of any annual adjustment at least thirty (30) days prior to the effective date, and such escalations shall be deemed accepted by Client and automatically incorporated into the applicable SOW.

SECTION 3 LIMITED WARRANTY

3.1 Warranty. PSIT warrants to Client that the Managed Services will be performed by qualified personnel in a professional manner.

3.2 Disclaimer of Warranties. The Managed Services are provided as-is. Except for the express warranty set forth in Section 3.1, PSIT expressly disclaims all warranties with respect to the Managed Services, express and implied, including but not limited to the warranty of merchantability, infringement, and the warranty of fitness for a particular purpose including without limitation, compliance with any state and federal laws governing or regulating Client.

SECTION 4 COVENANTS OF PSIT

PSIT covenants to Client as follows:

4.1 Performance of Managed Services. PSIT will be responsible for providing Managed Services consistent with industry standards.

4.2 Compliance with Laws. PSIT will comply with all applicable laws related to its business operations.

4.3 Governmental Authorizations. PSIT will obtain and maintain all of the licenses, permits, registrations, and other governmental authorizations required to conduct PSIT’s business and necessary to perform the Managed Services.

SECTION 5 COVENANTS OF CLIENT

Client covenants to PSIT as follows:

5.1 Use of Managed Services. Client will be solely responsible for its use of Managed Services, including the choice and use of equipment, software and online content, and all other matters related to Client’s use and application of Managed Services.

5.2 Lawful Purpose. Client agrees to only use Managed Services for lawful purposes and not to transmit any material in violation of any U.S. federal, state, or local law.

5.3 Acceptance of Network Use Policies. Client will comply with the acceptable use polices, rules and regulation, and terms and conditions of any network accessed through PSIT in connection with the Managed Services. PSIT reserves the right to deny Client access to, suspend Managed Services, or terminate this MSA if in PSIT’s sole opinion, Client is causing or may cause harm to PSIT facilities, servers or to other systems of third-party providers used by PSIT.

5.4 Indemnification. Client, without limitation, will release, defend, and indemnify PSIT for, from, and against any and all claims, actions, proceedings, damages, liabilities, and expenses of every kind, whether known or unknown, including but not limited to reasonable attorney’s fees resulting from or arising out of any claim relating to the (1) accuracy of any information provided by Client to PSIT in connection with the Managed Services, (2) Client’s breach of this MSA, (3) Client’s use, modification or publication of the Managed Services, (4) Client’s failure to strictly abide with licensing requirements described in Section 6.2, or (5) termination of Managed Services by PSIT pursuant to Section 9.3, and (6) destruction of Client data pursuant to Section 9.5.

5.5 PSIT RECOMMENDATIONS. While performing Managed Services, PSIT may make recommendations necessary to optimize Client’s IT systems and reduce ongoing repairs and resulting downtime, including but not limited to the purchase of upgraded hardware and software (“System Upgrade”). Client understands and agrees that if Client elects not follow PSIT’s recommendations and invest in System Upgrade, then PSIT may, at its election and following written notice to Client, bill Client at its then-current hourly rate for any services performed by PSIT related to Client’s failure to implement the System Upgrade. All such services will be considered Hourly Services (defined in Section 2.2).

5.6 NO HIRE. During the term of this MSA and for one (1) year after this MSA terminates, Client agrees not to directly or indirectly, hire or otherwise engage, or cause, aid or assist any other person, to hire or otherwise engage any of PSIT’s employees who provided Managed Services to Client with the one (1) year period preceding MSA termination.

5.7 CLIENT REPRESENTATIVE. Client appoints an employee as its representative and agent on all matters related to this MSA (“Client Representative”). Client may change its Client Representative at any time with written notice to PSIT. Client Representative will promptly respond and provide feedback to PSIT when requested and will assist and cooperate with PSIT in its provision of the Managed Services.

SECTION 6 OWNERSHIP & INTELLECTUAL PROPERTY RIGHTS

6.1 Intellectual Property Rights General. It is specifically acknowledged and agreed that all techniques, procedures, and methodologies used and implemented by PSIT in the provision of Managed Services are not sold or transferred to Client, and all such intellectual property rights to such techniques procedures and methodologies shall be retained by PSIT, or by such third party with whom PSIT contracts or licenses.

6.2 License MSA. It is specifically agreed and acknowledged that any software or products sold by PSIT to Client or installed by PSIT for the benefit of Client may be sold or installed subject to license agreements with software developers or manufacturers. By executing this MSA, Client agrees to fully abide by the terms and conditions of any such license agreements, and further agrees to indemnify, protect, and hold PSIT harmless from any claims, suits, actions, liabilities, and damages (including legal fees and costs) resulting from Client’s violation of such license agreements; provided, PSIT shall provide Client with a true and complete copy of any such license agreement before PSIT installs the related software for the benefit of Client.

6.3 Ownership. Until PSIT receives full payment for Managed Services and Hourly Service (“Services”) from Client and except as otherwise set forth herein, the entire right, title and interest in/to the applicable Services, including, without limitation, all modifications to the foregoing, and all portions thereof, together with all proprietary rights relating thereto, including, without limitation, all intellectual property rights such as copyrights, trademarks, patent and trade secret rights, are the exclusive property of PSIT.

6.3.1 Works-for-hire. The Services shall be deemed works-for-hire and shall be the exclusive property of Client upon PSIT’s receipt of full payment for the Services. PSIT expressly agrees to assign to Client the copyright to any Services that do not meet the requirements of a work-for-hire under the U.S. Copyright Act, as soon as such work is fixed in a tangible form or medium. Additionally, independent of the U.S. Copyright Act, PSIT hereby assigns to Client, to the fullest extent possible under the law, all of its right, title and interest, if any, in and to the Services. PSIT further agrees to execute and deliver such instrument(s) and to take such action(s) as may be required and/or requested by Client to confirm and/or defend Client’s sole and exclusive ownership of the Services.

SECTION 7 CONFIDENTIALITY NONDISCLOSURE PROVISIONS

The Non-Disclosure Agreement are part of this MSA.

SECTION 8 LIMITATION OF LIABILITY AND ACTION

PSIT’S AGGREGATE MONETARY LIABILITY TO CLIENT FOR ANY REASON AND FOR ANY AND ALL CAUSES OF ACTION, INCLUDING COSTS AND ATTORNEY FEES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE AMOUNT THAT CLIENT HAS PAID TO PSIT FOR THE MANAGED SERVICES DURING THE 6-MONTH PERIOD BEFORE THE CAUSE OF ACTION OCCURS.

PSIT WILL NOT BE LIABLE TO CLIENT UNDER ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE DAMAGES OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES, LOST DATA, CORRUPTED DATA, LOST PROFITS OR REVENUE, EVEN IF PSIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PSIT’S PRICE FOR THE MANAGED SERVICES AND PSIT’S OBLIGATIONS UNDER THIS MSA ARE CONSIDERATION FOR LIMITING PSIT’S LIABILITY TO CLIENT. CLIENT MAY NOT COMMENCE ANY ACTION AGAINST PSIT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, UNLESS THE ACTION IS COMMENCED WITHIN 12 MONTHS AFTER THE CAUSE OF ACTION OCCURS.

SECTION 9 TERMINATION

9.1 Term. Unless earlier terminated, consistent with the terms of this MSA, the term of this MSA is described on the applicable Statement of the Work (“Contractual Period”).  Following the end of the Contractual Period, unless Client and PSIT otherwise agree in writing, Client agrees to pay PSIT its then-current Managed Services Fee for Managed Services.

9.2 Termination. If Either party terminates this MSA pursuant to this Section, in addition to the payments required by Section 9.4, Client will pay PSIT an early termination fee in the amount described on the applicable SOW (“Termination Fee”) if such fee exists.

Termination for Convenience by Client. Prior to the end of the Contractual Period, Client may terminate this agreement with sixty (60) days’ written notice to PSIT.

Termination by PSIT. PSIT may terminate this MSA prior to the end of the Contractual Period if Client (a) fails to pay for services as contemplated by Section 2.3, (b) violates network policies as contemplated by Section 5.3, (c) fails to cooperate as contemplated by Section 5.6, or (c) breaches any other provision of this MSA.

9.3 Payment on Termination. In the event this MSA is terminated for any reason by any party, Client shall pay PSIT all Managed Services Fees (Section 2.2), Hourly Services (Section 2.2), and Expenses (Section 2.3) incurred prior to the termination date in the manner described in Section 2 above.

9.4 Return of Client Data on Termination. Upon termination of this MSA, PSIT will archive all Client data and promptly return it to Client. Client agrees to pay PSIT on an hourly basis at PSIT’s then-current hourly rates, for all time and costs associated with the archiving and return of Client data, including but not limited to, media storage and delivery fees related to the processing and return of Client Data. Client agrees and understands that once PSIT receives confirmation that it has delivered all Client data to Client, PSIT will destroy all Client data in its possession and will not keep any physical or electronic copy of Client data.

SECTION 10 GENERAL

10.1 Assignment. Neither party may assign or transfer this Agreement, in whole or in part, without the prior written consent of the other party, except that PSIT may assign this Agreement without Client’s consent in connection with any merger, acquisition, corporate reorganization, or sale of all or substantially all of its business or assets related to this Agreement. Any prohibited assignment will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

10.2 Binding Effect. This MSA will be binding on the parties and their respective heirs, personal representatives, successors, and permitted assigns, and will inure to their benefit.

10.3 Notices. All notices or other communications required or permitted by this MSA:

(a) must be in writing;
(b) must be delivered to the parties at the addresses set forth below, or any other address that a party may designate by notice to the other party; and
(c) are considered delivered:
(1) upon actual receipt if delivered personally or on the date of the confirmation receipt if delivered by fax, a delivery service, or by secure electronic mail; or
(2) at the end of the seventh business day after the date of deposit, if deposited in the United States mail, postage pre-paid, certified, return receipt requested.

To PSIT physical address:
Partnered Solutions IT
58 W 11 Ave., Suite A
Eugene, OR 97401

To PSIT electronic address:
BusinessOffice@Partneredsolutionsit.com

10.4 Waiver. No waiver will be binding on a party unless it is in writing and signed by the party making the waiver. A party’s waiver of a breach of a provision of this MSA will not be a waiver of any other provision or a waiver of a subsequent breach of the same provision.

10.5 Severability. If a provision of this MSA is determined to be unenforceable in any respect, the enforceability of the provision in any other respect and of the remaining provisions of this MSA will not be impaired.

10.6 Further Assurances. The parties will sign other documents and take other actions reasonably necessary to further effect and evidence this MSA.

10.7 No Third-Party Beneficiaries. The parties do not intend to confer any right or remedy on any third party.

10.8 Termination. The termination of this MSA, regardless of how it occurs, will not relieve a party of obligations that have accrued before the termination.

10.9 Survival. All provisions of this MSA that would reasonably be expected to survive the termination of this MSA will do so.

10.10 Attachments. Any exhibits, addendums, and other attachments referenced in this MSA are part of this MSA.

10.11 Remedies. The parties will have all remedies available to them at law or in equity. All available remedies are cumulative and may be exercised singularly or concurrently.

10.12 Governing Law. This MSA is governed by the laws of the State of Oregon, without giving effect to any conflict-of-law principle that would result in the laws of any other jurisdiction governing this MSA.

10.13 Mediation. Except for any claims related to payment of services (Section 2.4) which are not subject to mediation, PSIT and Client agree to mediate any disputes arising under this MSA in good faith prior to initiating litigation. The cost of the mediator will be shared equally between PSIT and Client, and each party in a mediation will be solely responsible to pay for their own legal fees.

10.14 Venue. Any mediation, action or proceeding arising out of this MSA will be litigated in courts located in Lane County, Oregon. Each party consents and submits to the jurisdiction of any local, state, or federal court located in Lane County, Oregon.

10.15 Attorney’s Fees. If any litigation is instituted to interpret, or enforce this MSA, including but not limited to any proceeding brought under the United States Bankruptcy Code, the prevailing party on a claim will be entitled to recover, with respect to the claim and in addition to any other relief awarded, the prevailing party’s reasonable attorney’s fees and other fees, costs, and expenses of every kind, including but not limited to the costs and disbursements specified in ORCP 68 A(2), incurred in connection with the arbitration, the litigation, any appeal or petition for review, the collection of any award, or the enforcement of any order, as determined by the arbitrator or court.

10.16 Entire Agreement. This MSA contains the entire understanding of the parties regarding the subject matter of this MSA. This MSA is subject to adjustment with thirty (30) day’s notice. This MSA supersedes and replaces any and all previous MSAs.