MASTER “SOFTWARE AS A SERVICE” MANAGED SERVICES AGREEMENT
This agreement ("Agreement") is entered into, to be effective as of __________ (“Effective Date”),
by and between [ENTER CUSTOMER NAME], located at [Enter Customer Address] (“Customer”), and
[ENTER SERVICE PROVIDER NAME] located at [Enter Service Provider Address] ("Service Provider").
RECITALS
WHEREAS, Customer requires hosted third-party “software as a service” (the “Services,” as further
described herein) with respect to certain of its information technology needs;
WHEREAS, Customer requested a proposal from Service Provider for such Services;
WHEREAS, Service Provider has experience and expertise in the business of providing the
Services;
WHEREAS, Service Provider submitted a proposal to Customer to perform such Services on
behalf of Customer;
WHEREAS, based on Service Provider’s superior knowledge and experience relating to such
Services, Customer has selected Service Provider to manage and provide the Services;
WHEREAS, Service Provider wishes to perform the Services and acknowledges that the
successful performance of the Services and that the security and availability of Customer’s data (“Customer
Data,” as further described herein) are critical to the operation of Customer’s business; and,
WHEREAS, Service Provider has agreed to provide the Services to Customer, all on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and representations set forth in this
Agreement, the parties hereby agree as follows:
1. The Services.
1.1 Purpose; Term. This Agreement sets forth the terms and conditions under which Service
Provider agrees to license certain hosted “software as a service” and provide all other
services, data import / export, monitoring, support, backup and recovery, change
management, technology upgrades, and training necessary for Customer’s productive use
of such software (the “Services”), as further set forth on an Exhibit A (sequentially
numbered) in the form of the Exhibit A attached hereto or in other statements of “software
as a service” work containing substantially similar information and identified as an Exhibit
A. The Agreement and each Exhibit A shall remain in effect unless terminated as
provided herein.
1.1.1 Authorized Users. Unless otherwise limited on an Exhibit A, Customer and
any of its employees, agents, contractors, or suppliers of services that have
a need to use the Services for the benefit of Customer shall have the right to
operate and use the same. As a part of the Service, Service Provider shall
be responsible for all user identification and password change management.
1.2 Control of Services. The method and means of providing the Services shall be under the
exclusive control, management, and supervision of Service Provider, giving due
consideration to the requests of Customer.
1.3 Time of Service Provider Performance of Services. For the term of the applicable Exhibit
A, as the same may be amended, Service Provider shall provide the Services during the
applicable Service Windows and in accordance with the applicable Service Levels, each
as described in an Exhibit A, time being of the essence.
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1.4 Backup and Recovery of Customer Data. As a part of the Services, Service Provider is
responsible for maintaining a backup of Customer Data, for an orderly and timely recovery
of such data in the event that the Services may be interrupted. Unless otherwise
described in an Exhibit A, Service Provider shall maintain a contemporaneous backup of
Customer Data that can be recovered within two (2) hours at any point in time.
Additionally, Service Provider shall store a backup of Customer Data in an off-site
“hardened” facility no less than daily, maintaining the security of Customer Data, the
security requirements of which are further described herein.
1.5 Non-exclusivity. Nothing herein shall be deemed to preclude Customer from retaining the
services of other persons or entities undertaking the same or similar functions as those
undertaken by Service Provider hereunder.
1.6 Subcontractors. Service Provider shall not enter into any subcontracts for the
performance of the Services, or assign or transfer any of its rights or obligations under this
Agreement, without Customer’s prior written consent and any attempt to do so shall be
void and without further effect. Customer’s consent to Service Provider’s right to
subcontract any of the Services shall not relieve Service Provider of any of its duties or
obligations under this Agreement, and Service Provider shall indemnify and hold
Customer harmless from any payment required to be paid to any such subcontractors.
1.7 Change Control Procedure. Customer may, upon written notice, request increases or
decreases to the scope of the Services under an Exhibit A. If Customer requests an
increase in the scope, Customer shall notify Service Provider, and, not more than five (5)
business days (or other mutually agreed upon period) after receiving the request, Service
Provider shall notify Customer whether or not the change has an associated cost impact.
If Customer approves, Customer shall issue a change control, which will be executed by
the Service Provider. Customer shall have the right to decrease the scope and the fee for
an Exhibit A will be reduced accordingly.
2. Term and Termination.
2.1 Term. Unless this Agreement or an Exhibit A is terminated earlier in accordance with the
terms set forth in this Section, the term of an Exhibit A (the “Initial Term”) shall commence
on the Effective Date and continue for twelve (12) months thereafter. Following the Initial
Term, an Exhibit A shall automatically renew for successive one-year terms (each, a
“Renewal Term”) until such time as Customer provides Service Provider with written
notice of termination; provided, however, that: (a) such notice be given no fewer than thirty
(30) calendar days prior to the last day of the then-current term; and, (b) any such
termination shall be effective as of the date that would have been the first day of the next
Renewal Term. “Term” shall collectively mean and include the Agreement terms
represented by the Initial Term and the Renewal Term.
2.2 Termination for Cause. If either party materially breaches any of its duties or obligations
hereunder, including two periods of successive failure of Service Provider to met a Service
Level, and such breach is not cured, or the breaching party is not diligently pursuing a
cure to the non-breaching party’s sole satisfaction, within thirty (30) calendar days after
written notice of the breach, then the non-breaching party may terminate this Agreement
or an Exhibit A for cause as of a date specified in such notice.
2.3 Payments Upon Termination. Upon the expiration or termination of this Agreement or an
Exhibit A for any reason, Customer shall pay to Service Provider all undisputed amounts
due and payable hereunder.
2.4 Return of Materials. Upon expiration or earlier termination of this Agreement or an Exhibit
A, each party shall: (a) promptly return to the other party, or certify the destruction of any
of the following of the other party held in connection with the performance of this
Agreement or the Services: (i) all Confidential Information; and, (ii) any other data,
programs, and materials; and, (b) return to the other party, or permit the other party to
remove, any properties of the other party then situated on such party’s premises. In the
case of Customer Data, Service Provider shall, immediately upon termination of this
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Agreement or an Exhibit A, shall provide Customer with a final export of the Customer
Data and shall certify the destruction of any Customer Data within the possession of
Service Provider. The parties agree to work in good faith to execute the foregoing in a
timely and efficient manner. This Section shall survive the termination of this Agreement.
3. Termination Assistance Services. Provided that this Agreement or an Exhibit A has not been
terminated by Service Provider due to Customer’s failure to pay any undisputed amount due
Service Provider, Service Provider will provide to Customer and / or to the supplier selected by
Customer (such supplier shall be known as the “Successor Service Provider”), at Customer’s sole
cost and expense, assistance reasonably requested by Customer in order to effect the orderly
transition of the applicable Services, in whole or in part, to Customer or to Successor Service
Provider (such assistance shall be known as the “Termination Assistance Services) during the
ninety (90) calendar day period prior to, and / or following, the expiration or termination of this
Agreement or an Exhibit A, in whole or in part (such period shall be known as the “Termination
Assistance Period”). Provided that Service Provider and Customer agree as to price and scope of
Service Provider’s provisioning of Termination Assistance Services, such Termination Assistance
Services may include:
3.1 developing a plan for the orderly transition of the terminated or expired Services from
Service Provider to Customer or the Successor Service Provider;
3.2 providing reasonable training to Customer staff or the Successor Service Provider in the
performance of the Services then being performed by Service Provider;
3.3 using commercially reasonable efforts to assist Customer, at Customer’s sole cost and
expense, in acquiring any necessary rights to legally and physically access and use any
third-party technologies and documentation then being used by Service Provider in
connection with the Services;
3.4 using commercially reasonable efforts to make available to Customer, pursuant to
mutually agreeable terms and conditions, any third-party services then being used by
Service Provider in connection with the Services; and,
3.5 such other activities upon which the parties may agree.
3.6 The provisions of this Section shall survive the termination of this Agreement.
4. Services Levels.
4.1 Service Levels Reviews. Service Provider and Customer will meet as often as shall be
reasonably requested by Customer, but no more than monthly, to review the performance
of Service Provider as it relates to the Service Levels further described in Exhibit A.
4.2 Failure to Meet Service Levels. As further described in Exhibit A, in the event Service
Provider does not meet any of the requisite Service Levels, Service Provider shall: (a)
reduce the applicable monthly invoice to Customer by the amount of the applicable
Performance Credits as a credit, and not as liquidated damages; and, (b) use its best
efforts to ensure that any unmet Service Level is subsequently met. Notwithstanding the
foregoing, Service Provider will use commercially reasonable efforts to minimize the
impact or duration of any outage, interruption, or degradation of Service.
4.3 Escrow Agreement. Service Provider agrees to place in escrow with an escrow agent
copies of the most current version of the source code for the applicable software that is
included as a part of the Services, including all updates, improvements, and
enhancements thereof from time to time developed by Service Provider (the “Software”)
necessary to internally support (i.e., maintain and / or repair) the Software for the benefit
of Customer. Service Provider agrees that upon the occurrence of any event or
circumstance which demonstrates with reasonable certainty the inability or unwillingness
of Service Provider to fulfill its obligations to Customer under this Agreement or an Exhibit
A, Customer shall be able to obtain the source code of the then-current Software from the
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escrow agent. The provisions of this Section shall survive the termination of this
Agreement.
5. Fees and Expenses. Customer shall be responsible for and shall pay to Service Provider the fees
as further described in Exhibit A, subject to the terms and conditions contained therein. Any sum
due Service Provider for Services performed for which payment is not otherwise specified shall be
due and payable thirty (30) days after receipt by Customer of an invoice from Service Provider
5.1 Billing Procedures. Unless otherwise provided for under an Exhibit A, Service Provider
shall bill to Customer the sums due pursuant to an Exhibit A by Service Provider’s invoice,
which shall contain: (a) Customer purchase order number, if any, and invoice number; (b)
description of Services rendered; (c) the Services fee or portion thereof that is due; (d);
taxes, if any; and, (e) total amount due. Service Provider shall forward invoices in
hardcopy format to _____________________________________.
5.2 Credits. Any amounts due from Service Provider may be applied by Customer against
any fees due to Service Provider. Any such amounts that are not so applied shall be paid
to Customer by Service Provider within thirty (30) days following Customer's request.
5.3 Non-binding Terms. Any terms and conditions that are included in a Service Provider
invoice shall be deemed to be solely for the convenience of the parties, and no such term
or condition shall be binding upon Customer.
5.4 Auditable Records. Service Provider shall maintain accurate records of all fees billable to,
and payments made by, Customer in a format that will permit audit by Customer for a
period of not less than three (3) years. For such period, upon Customer’s written request,
Service Provider shall provide Customer with a copy of any annual “SAS 70” or other audit
reports prepared by auditors of Service Provider, if so prepared. This Section shall
survive the termination of this Agreement.
5.5 Taxes. Service Provider represents and warrants that it is an independent contractor for
purposes of federal, state, and local employment taxes. Service Provider agrees that
Customer is not responsible to collect or withhold any such taxes, including income tax
withholding and social security contributions, for Service Provider. Any and all taxes,
interest or penalties, including any federal, state, or local withholding or employment
taxes, imposed, assessed, or levied as a result of this Agreement shall be paid or withheld
by Service Provider.
6. Customer Resources and Service Provider Resources. In accordance with the terms set forth in
Exhibit A, each party shall provide certain resources (Customer Resources and Service Provider
Resources, as the case may be) to the other party as Customer and Service Provider may mutually
deem necessary to perform the Services.
6.1 Customer Resources. If so described in an Exhibit A, where Customer provides
resources (e.g., technology equipment) to Service Provider that are reasonably required
for the exclusive purpose of providing the Services, Service Provider agrees to keep such
resources in good order and not permit waste (ameliorative or otherwise) or damage to
the same. Service Provider shall return the resources to Customer in substantially the
same condition as when Service Provider began using the same, ordinary wear and tear
excepted. Customer shall provide the Customer Resources, if any, described in an
Exhibit A.
6.2 Service Provider Resources. In addition to any Service Provider Resources described in
an Exhibit A, the Service Provider shall, at a minimum, provide all of the resources
necessary to ensure that the Services continue uninterrupted, considering the applicable
Service Windows and Service Levels, that Customer Data is secure to the standards and
satisfaction of Customer, and provide for an optimal response time for Customer’s users
of the Services. Where Service Provider fails to provide such minimal Service Provider
Resources, Customer shall have the right to immediately terminate this Agreement or the
applicable Exhibit A, in whole or in part, without liability.
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7. Representations and Warranties.
7.1 Mutual Representations and Warranties. Each of Customer and Service Provider
represent and warrant that:
7.1.1 it is a business duly incorporated, validly existing, and in good standing
under the laws of its state of incorporation;
7.1.2 it has all requisite corporate power, financial capacity, and authority to
execute, deliver, and perform its obligations under this Agreement;
7.1.3 this Agreement, when executed and delivered, shall be a valid and binding
obligation of it enforceable in accordance with its terms;
7.1.4 the execution, delivery, and performance of this Agreement has been duly
authorized by it and this Agreement constitutes the legal, valid, and binding
agreement of it and is enforceable against it in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganizations, moratoriums, and similar laws affecting
creditors' rights generally and by general equitable principles;
7.1.5 it shall comply with all applicable federal, state, local, international, or other
laws and regulations applicable to the performance by it of its obligations
under this Agreement and shall obtain all applicable permits and licenses
required of it in connection with its obligations under this Agreement; and,
7.1.6 there is no outstanding litigation, arbitrated matter or other dispute to which it
is a party which, if decided unfavorably to it, would reasonably be expected
to have a potential or actual material adverse effect on its ability to fulfill its
obligations under this Agreement.
7.2 By Service Provider. Service Provider represents and warrants that:
7.2.1 Service Provider is possessed of superior knowledge with respect to the
Services;
7.2.2 Service Provider knows the particular purpose for which the Services are
required;
7.2.3 the Services to be performed under this Agreement shall be performed in a
competent and professional manner and in accordance with the highest
professional standards;
7.2.4 Service Provider has the experience and are qualified to perform the tasks
involved with providing the Services in an efficient and timely manner.
Service Provider acknowledges that Customer is relying on Service
Provider's representation of its experience and expertise, and that any
substantial misrepresentation may result in damage to Customer;
7.2.5 the Services will achieve in all material respects the functionality described
in an Exhibit A and the documentation of Service Provider, and that such
functionality shall be maintained during the Term;
7.2.6 Service Provider will use its best efforts to ensure that no computer viruses,
malware, or similar items (collectively, the “Virus”) are introduced into
Customer’s computer and network environment while performing the
Services, that Service Provider will adhere to Customer’s then current
procedures to protect against the same, and that, where Service Provider
transfers such Virus to Customer through the Services, Service Provider
shall reimburse Customer the actual cost incurred by Customer to remove or
recover from the Virus, including the costs of persons employed by
Customer; and,
7.2.7 the Services and any other work performed by Service Provider hereunder
shall be its own work, and shall not infringe upon any United States or
foreign copyright, patent, Trade Secret, or other proprietary right, or
misappropriate any Trade Secret, of any third party, and that it has neither
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assigned nor otherwise entered into an agreement by which it purports to
assign or transfer any right, title, or interest to any technology or intellectual
property right that would conflict with its obligations under this Agreement.
8. Non-Disclosure of Confidential Information. The parties acknowledge that each party may be
exposed to or acquire communication or data of the other party that is confidential, privileged
communication not intended to be disclosed to third parties.
8.1 Meaning of Confidential Information. For the purposes of this Agreement, the term
“Confidential Information” shall mean all information and documentation of a party that:
(a) has been marked "confidential" or with words of similar meaning, at the time of
disclosure by such entity; (b) if disclosed orally or not marked "confidential" or with words
of similar meaning, was subsequently summarized in writing by the disclosing entity and
marked “confidential” or with words of similar meaning; (c) with respect to information and
documentation of Customer, whether marked “Confidential” or not, consists of Customer
information and documentation included within any of the following categories: (i)
policyholder, payroll account, agent, customer, supplier, or contractor lists; (ii)
policyholder, payroll account, agent, customer, supplier, or contractor information; (iii)
information regarding business plans (strategic and tactical) and operations (including
performance); (iv) information regarding administrative, financial, or marketing activities;
(v) pricing information; (vi) personnel information; (vii) products and/or and services
offerings (including specifications and designs); or, (viii) processes (e.g., technical,
logistical, and engineering); or, (d) any Confidential Information derived from information
of a party. The term "Confidential Information" does not include any information or
documentation that was: (a) already in the possession of the receiving entity without an
obligation of confidentiality; (b) developed independently by the receiving entity, as
demonstrated by the receiving entity, without violating the disclosing entity’s proprietary
rights; (c) obtained from a source other than the disclosing entity without an obligation of
confidentiality; or, (d) publicly available when received, or thereafter became publicly
available (other than through any unauthorized disclosure by, through or on behalf of, the
receiving entity).
8.2 Obligation of Confidentiality. The parties agree to hold all Confidential Information in strict
confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or
disclose such Confidential Information to third parties other than employees, agents, or
subcontractors of a party who have a need to know in connection with this Agreement or
to use such Confidential Information for any purposes whatsoever other than the
performance of this Agreement. The parties agree to advise and require their respective
employees, agents, and subcontractors of their obligations to keep such information
confidential.
8.3 Cooperation to Prevent Disclosure of Confidential Information. Each party shall use its
best efforts to assist the other party in identifying and preventing any unauthorized use or
disclosure of any Confidential Information. Without limitation of the foregoing, each party
shall advise the other party immediately in the event either party learns or has reason to
believe that any person who has had access to Confidential Information has violated or
intends to violate the terms of this Agreement and each party will cooperate with the other
party in seeking injunctive or other equitable relief against any such person.
8.4 Remedies for Breach of Obligation of Confidentiality. Service Provider acknowledges that
breach of Service Provider’s obligation of confidentiality may give rise to irreparable injury
to Customer and the customers of Customer, which damage may be inadequately
compensable in the form of monetary damages. Accordingly, Customer or customers of
Customer may seek and obtain injunctive relief against the breach or threatened breach of
the foregoing undertakings, in addition to any other legal remedies which may be
available, to include, at the sole election of Customer, the immediate termination, without
penalty to Customer, of this Agreement in whole or in part.
8.5 The provisions of this Section shall survive the termination of this Agreement.
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9. Proprietary Rights.
9.1 Pre-existing Materials. Customer acknowledges that, in the course of performing the
Services, Service Provider may use software and related processes, instructions,
methods, and techniques that have been previously developed by Service Provider
(collectively, the “Pre-existing Materials”) and that same shall remain the sole and
exclusive property of Service Provider.
9.2 Data of Customer. Customer’s information, or any derivatives thereof, contained in any
Service Provider repository (the “Customer Data,” which shall also be known and treated
by Service Provider as Confidential Information) shall be and remain the sole and
exclusive property of Customer. Customer shall be entitled to an export of Customer
Data, without charge, upon the request of Customer and upon termination of this
Agreement or an Exhibit A. Service Provider is provided a license to Customer Data
hereunder for the sole and exclusive purpose of providing the Services, including a license
to store, record, transmit, maintain, and display Customer Data only to the extent
necessary in the provisioning of the Services.
9.3 No License. Except as expressly set forth herein, no license is granted by either party to
the other with respect the Confidential Information, Pre-existing Materials, or Customer
Data. Nothing in this Agreement shall be construed to grant to either party any ownership
or other interest, in the Confidential Information, Pre-existing Materials, or Customer Data,
except as may be provided under a license specifically applicable to such Confidential
Information, Pre-existing Materials, or Customer Data.
9.4 The provisions of this Section shall survive the termination of this Agreement.
10. Information Security. Service Provider acknowledges that Customer has implemented an
information security program (the Customer Information Security Program, as the same may be
amended) to protect Customer’s information assets, such information assets as further defined and
classified in the Customer Information Security Program (collectively, the “Protected Data”).Where
Service Provider has access to the Protected Data, Service Provider acknowledges and agrees to
the following. [Note: Should the Services involve PHI, a separate business associate agreement
must be entered into and should be referred to herein.]
10.1 Undertaking by Service Provider. Without limiting Service Provider’s obligation of
confidentiality as further described herein, Service Provider shall be responsible for
establishing and maintaining an information security program that is designed to: (i)
ensure the security and confidentiality of the Protected Data; (ii) protect against any
anticipated threats or hazards to the security or integrity of the Protected Data; (iii) protect
against unauthorized access to or use of the Protected Data; (iv) ensure the proper
disposal of Protected Data; and, (v) ensure that all subcontractors of Service Provider, if
any, comply with all of the foregoing. In no case shall the safeguards of Service
Provider’s information security program be less stringent than the information security
safeguards used by the Customer Information Security Program as provided by Customer
to Service Provider for this purpose. The Customer Information Security Program is
Confidential Information of Customer.
10.2 Right of Audit by Customer. Customer shall have the right to review Service Provider’s
information security program prior to the commencement of Services and from time to
time during the term of this Agreement. During the performance of the Services, on an
ongoing basis from time to time and without notice, Customer, at its own expense, shall be
entitled to perform, or to have performed, an on-site audit of Service Provider’s information
security program. In lieu of an on-site audit, upon request by Customer, Service Provider
agrees to complete, within forty-five (45 days) of receipt, an audit questionnaire provided
by Customer regarding Service Provider’s information security program.
10.3 Audit by Service Provider. No less than annually, Service Provider shall conduct an
independent third-party audit of its information security program and provide such audit
findings to Customer.
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10.4 Audit Findings. Service Provider shall implement any required safeguards as identified by
Customer or information security program audits.
10.5 Indemnification by Service Provider. Without limiting Service Provider’s other obligations
of indemnification herein, Service Provider shall defend, indemnify, and hold Customer
Indemnitees harmless from and against any and all Claims, including reasonable
expenses suffered by, accrued against, or charged to or recoverable from any Customer
Indemnitee, on account of the failure of Service Provider to perform its obligations
imposed herein.
11. Insurance.
11.1 Service Provider shall, at its own cost and expense, procure and maintain in full force and
effect during the term of this Agreement, policies of insurance, of the types and in the
minimum amounts stated herein, with responsible insurance carriers duly qualified in
those states (locations) where the Services are to be performed, covering the operations
of Service Provider, pursuant to this Agreement.
LIMITS OF LIABILITY
TYPES OF INSURANCE
(Minimum Amounts)
Comprehensive or Commercial General Liability and Third $1,000,000 per occurrence, $2,000,000 aggregate
Party Property Damage
Excess Liability insurance $2,000,000 per occurrence, $2,000,000 aggregate
Workers' Compensation Statutory limits
Employer’s Liability $500,000 per accident
Professional Errors and Omissions Insurance $1,000,000 per occurrence, $1,000,000 aggregate
11.2 Customer shall be named as an additional insured in such policies which shall contain
standard cross liability clauses. Service Provider shall cause the liability it assumed under
this Agreement to be specifically insured under the contractual liability section of the
liability insurance policies. The liability policy shall be primary without right of contribution
from any insurance by Customer. Such policies shall require that Customer be given not
less than thirty (30) days prior written notice of any cancellation thereof or material change
therein. Customer shall have the right to request an adjustment of Limits of Liability for
General Liability and Errors and Omissions Insurance as Service Provider’s exposure to
Customer increases (i.e. if Service Provider’s annual payment is expected to be
$2,000,000 then $1,000,000 limits are no longer adequate).
11.3 Upon Customer’s request, Service Provider shall provide Customer with certificates of
insurance evidencing all of the above coverage, including all special requirements
specifically noted above, and shall provide Customer with certificates of insurance
evidencing renewal or substitution of such insurance thirty (30) days prior to the effective
date of such renewal or substitution.
12. General Indemnity. Service Provider agrees to indemnify, defend, and hold Customer, its officers,
directors, agents, and employees (each, an “Indemnitee” and collectively, the “Indemnitees”)
harmless from and against any and all liabilities, damages, losses, expenses, claims, demands,
suits, fines, or judgments (collectively “Claims”), including reasonable attorneys' fees, costs, and
expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable
from any Customer Indemnitee, by reason of any Claim arising out of or relating to any act, error or
omission, or misconduct of Service Provider, its officers, directors, agents, employees, and
subcontractors, during the performance of this Agreement, including, without limitation, Claims
arising out of or relating to: (a) bodily injury (including death) or damage to tangible personal or real
property; (b) violation of any law or regulation; (c) Viruses; or, (d) breaches of any representations
made under this Agreement; provided, however, that the foregoing indemnity shall not apply to the
extent that the applicable Claim resulted from the acts or omissions of Customer, its officers,
directors, agents, or employees.
13. Proprietary Rights Indemnification. Service Provider agrees to indemnify, defend, and hold
Customer Indemnitees harmless from and against any and all Claims, including reasonable
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attorneys' fees, costs, and expenses incidental thereto, which may be suffered by, accrued against,
charged to, or recoverable from any Customer Indemnitee, arising out of a claim that the Services
infringes or misappropriates any United States or foreign patent, copyright, trade secret, trademark,
or other proprietary right. In the event that Service Provider is enjoined from delivering either
preliminary or permanently, or continuing to license to Customer, the Services and such injunction
is not dissolved within thirty (30) days, or in the event that Customer is adjudged, in any final order
of a court of competent jurisdiction from which no appeal is taken, to have infringed upon or
misappropriated any patent, copyright, trade secret, trademark, or other proprietary right in the use
of the Services, then Service Provider shall, at its expense: (a) obtain for Customer the right to
continue using such Services; (b) replace or modify such Services so that it does not infringe upon
or misappropriate such proprietary right and is free to be delivered to and used by Customer; or, (c)
in the event that Service Provider is unable or determines, in its reasonable judgment, that it is
commercially unreasonable to do either of the aforementioned, Service Provider shall reimburse to
Customer the full cost associated with Termination Assistance Services.
14. Indemnification Procedures. Promptly after receipt by Customer of a threat of any action, or a
notice of the commencement, or filing of any action against Customer or any Customer Indemnitee,
Customer shall give notice thereof to Service Provider, provided that failure to give or delay in
giving such notice to Service Provider shall not relieve Service Provider of any liability it may have
to Customer or any Customer Indemnitee except to the extent that Service Provider demonstrates
that the defense of such action is prejudiced thereby. Customer shall not independently defend or
respond to any such claim; provided, however, that: (a) Customer may defend or respond to any
such claim, at Service Provider's expense, if Customer’s counsel determines, in its sole discretion,
that such defense or response is necessary to preclude a default judgment from being entered
against Customer; and, (b) Customer shall have the right, at its own expense, to monitor Service
Provider's defense of any such claim. Service Provider shall have sole control of the defense and
of all negotiations for settlement of such action. At Service Provider’s request, Customer shall
cooperate with Service Provider in defending or settling any such action; provided, however, that
Service Provider shall reimburse Customer for all reasonable out-of-pocket costs incurred by
Customer (including, without limitation, reasonable attorneys’ fees and expenses) in providing such
cooperation.
15. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN,
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, AND/OR
CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT; PROVIDED, HOWEVER, THAT THE FOREGOING EXCULPATION OF LIABILITY
SHALL NOT APPLY WITH RESPECT TO DAMAGES INCURRED AS A RESULT OF THE
GROSS NEGLIGENCE OR WILFULL MISCONDUCT OF A PARTY. A PARTY SHALL BE LIABLE
TO THE OTHER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS
PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED,
HOWEVER, THAT THE LIABILITY OF A PARTY, WHETHER BASED ON AN ACTION OR CLAIM
IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR
OMISSIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE
UNDER THIS AGREEMENT, AND PROVIDED, FURTHER, THAT THE FOREGOING LIMITATION
SHALL NOT APPLY TO: (A) A PARTY’S OBLIGATIONS OF INDEMNIFICATION, AS FURTHER
DESCRIBED IN THIS AGREEMENT; (B) DAMAGES CAUSED BY A PARTY’S GROSS
NEGLIGENCE OR WILFULL MISCONDUCT; OR, (C) A PARTY’S BREACH OF ITS
OBLIGATIONS OF CONFIDENTIALITY, AS FURTHER DESCRIBED IN THIS AGREEMENT. This
Section shall survive the termination of this Agreement.
16. General.
16.1 Relationship between Customer and Service Provider. Service Provider represents and
warrants that it is an independent contractor with no authority to contract for Customer or
in any way to bind or to commit Customer to any agreement of any kind or to assume any
liabilities of any nature in the name of or on behalf of Customer. Under no circumstances
shall Service Provider, or any of its staff, if any, hold itself out as or be considered an
agent employee, joint venture, or partner of Customer. In recognition of Service
Provider’s status as independent contractor, Customer shall carry no Workers’
Compensation insurance or any health or accident insurance to cover Service Provider or
Service Provider’s agents or staff, if any. Customer shall not pay any contributions to
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Social Security, unemployment insurance, federal or state withholding taxes, any other
applicable taxes whether federal, state, or local, nor provide any other contributions or
benefits which might be expected in an employer-employee relationship. Neither Service
Provider nor its staff, if any, shall be eligible for, participate in, or accrue any direct or
indirect benefit under any other compensation, benefit, or pension plan of Customer.
16.2 Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Virginia and the federal laws of the United States of
America. Service Provider hereby consents and submits to the jurisdiction and forum of
the state and federal courts in the Commonwealth of Virginia in all questions and
controversies arising out of this Agreement. Notwithstanding the foregoing, the parties
agree that the Uniform Computer Information Transactions Act as enacted in Virginia, Va.
Code §§ 59.1-501.1 et seq. (“UCITA”) or in any other Commonwealth or State of the
United States shall not apply to this Agreement or any performance hereunder and the
parties expressly opt-out of the applicability of UCITA to this Agreement.
16.3 Dispute Resolution. In the event of any dispute or disagreement between the parties with
respect to the interpretation of any provision of this Agreement, or with respect to the
performance of either party hereunder, Customer and Service Provider Engagement
Managers will meet for the purpose of resolving the dispute. If the parties are unable to
resolve the dispute within five (5) working days, or as otherwise agreed, either project
manager will have the right to submit the dispute to Service Provider’s vice president level
and Customer’s second vice president level (the “Representatives”) who will meet as often
as the parties reasonably deem necessary in order to gather and furnish to each other all
essential, non-privileged information that the parties believe germane to resolution of the
matter at issue. During the course of these non-judicial dispute resolution procedures,
documents used to resolve the dispute shall be limited to essential, non-privileged
information. All requests shall be made in good faith and be reasonable in light of the
economics and time efficiencies intended by the dispute resolution procedures. The
Representatives may mutually agree to appoint a neutral advisor to facilitate negotiations
and, if requested by both parties, to render non-binding opinions. No formal proceedings
for the judicial resolution of any dispute may be commenced until sixty (60) calendar days
following initiation of negotiations under this Section or for such shorter period as the
parties may mutually agree to in writing. Either party may then seek whatever remedy is
available in law or in equity. The provisions of this Section will not apply to any dispute
relating to the parties’ obligations of non-disclosure and confidentiality as further described
herein.
16.4 Compliance With Laws; Customer Policies and Procedures. Both parties agree to comply
with all applicable federal, state, and local laws, executive orders and regulations issued,
where applicable. Service Provider shall comply with Customer policies and procedures
where the same are posted, conveyed, or otherwise made available to Service Provider.
Without limiting Service Provider’s other obligations of indemnification herein, Service
Provider shall defend, indemnify, and hold Customer Indemnitees harmless from and
against any and all Claims, including reasonable expenses suffered by, accrued against,
or charged to or recoverable from any Customer Indemnitee, on account of the failure of
Service Provider to perform its obligations imposed herein.
16.5 Cooperation. Where agreement, approval, acceptance, consent or similar action by either
party hereto is required by any provision of this Agreement, such action shall not be
unreasonably delayed or withheld. Each party will cooperate with the other by, among
other things, making available, as reasonably requested by the other, management
decisions, information, approvals, and acceptances in order that each party may properly
accomplish its obligations and responsibilities hereunder. Service Provider will cooperate
with any Customer supplier performing services, and all parties supplying hardware,
software, communication services, and other services and products to Customer,
including, without limitation, the Successor Service Provider. Service Provider agrees to
cooperate with such suppliers, and shall not commit or permit any act which may interfere
with the performance of services by any such supplier.
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16.6 Force Majeure. Neither party shall be liable for delays or any failure to perform the
Services or this Agreement due to causes beyond its reasonable control. Such delays
include, but are not limited to, fire, explosion, flood or other natural catastrophe,
governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the
extent not occasioned by the fault or negligence of the delayed party. Any such excuse
for delay shall last only as long as the event remains beyond the reasonable control of the
delayed party. However, the delayed party shall use its best efforts to minimize the delays
caused by any such event beyond its reasonable control. Where Service Provider fails to
use its best efforts to minimize such delays, the delays shall be included in the
determination of Service Level achievement. The delayed party must notify the other
party promptly upon the occurrence of any such event, or performance by the delayed
party will not be considered excused pursuant to this Section, and inform the other party of
its plans to resume performance. A force majeure event does not excuse Service
Provider from providing Services and fulfilling its responsibilities relating to the
requirements of backup and recovery of Customer Data. Configuration changes, other
changes, viruses / malware, or other errors or omissions introduced, or permitted to be
introduced, by Service Provider that result in an outage or inability for Customer to use the
Services shall not constitute a force majeure event.
16.7 Advertising and Publicity. Service Provider shall not refer to Customer directly or indirectly
in any advertisement, news release, or publication without prior written approval from
Customer.
16.8 No Waiver. The failure of either party at any time to require performance by the other
party of any provision of this Agreement shall in no way affect that party's right to enforce
such provisions, nor shall the waiver by either party of any breach of any provision of this
Agreement be taken or held to be a waiver of any further breach of the same provision.
16.9 Notices. Any notice given pursuant to this Agreement shall be in writing and shall be
given by personal service or by United States certified mail, return receipt requested,
postage prepaid to the addresses appearing at the end of this Agreement, or as changed
through written notice to the other party. Notice given by personal service shall be
deemed effective on the date it is delivered to the addressee, and notice mailed shall be
deemed effective on the third day following its placement in the mail addressed to the
addressee.
16.10 Assignment of Agreement. This Agreement and the obligations of Service Provider
hereunder are personal to Service Provider and its staff. Neither Service Provider nor any
successor, receiver, or assignee of Service Provider shall directly or indirectly assign this
Agreement or the rights or duties created by this Agreement, whether such assignment is
effected in connection with a sale of Service Provider's assets or stock or through merger,
an insolvency proceeding or otherwise, without the prior written consent of Customer.
16.11 Counterparts; Facsimile. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one
and the same Agreement. The parties agree that a facsimile signature may substitute for
and have the same legal effect as the original signature.
16.12 Entire Agreement. This Agreement and its attached exhibits constitute the entire
agreement between the parties and supersede any and all previous representations,
understandings, or agreements between Customer and Service Provider as to the subject
matter hereof. This Agreement may only be amended by an instrument in writing signed
by the parties.
16.13 Cumulative Remedies. All rights and remedies of Customer herein shall be in addition to
all other rights and remedies available at law or in equity, including, without limitation,
specific performance against Service Provider for the enforcement of this Agreement, and
temporary and permanent injunctive relief.
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Executed on the dates set forth below by the undersigned authorized representative of Customer
and Service Provider to be effective as of the Effective Date.
[ENTER CUSTOMER NAME] (CUSTOMER) [ENTER SERVICE PROVIDER NAME] (SERVICE
PROVIDER)
By: __________________________________ By: ________________________________________
Name: Name:
Title: Title:
Date: Date:
Address for Notice: Address for Notice:
Attention: Attention:
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EXHIBIT A-____
Service Provider’s Software as a Service Statement of Managed Services
This Exhibit A - Service Provider’s Software as a Service Statement of Work shall be incorporated
in and governed by the terms of that certain Master Professional Services Agreement by and between
[ENTER CUSTOMER NAME] (“Customer”) and [ENTER SERVICE PROVIDER NAME] (“Service Provider”)
dated ______________________, as amended (the “Agreement”). Unless expressly provided for in this
Exhibit A, in the event of a conflict between the provisions contained in the Agreement and those contained
in this Exhibit A, the provisions contained in the Agreement shall prevail.
Services Description:
Support Description:
Training Description:
Backup Requirements:
Service Windows:
Service Levels: Examples to consider:
Application Response Time
Backup and Recovery Response Time
Production Changes
User Identification and Password Changes
Support Response Time
Performance Credits for
Missed Service Levels:
Customer Resources:
Service Provider
Resources:
Responsibilities,
Deliverables, and/or
Activities:
Services Fees or Rate:
Start Date:
End Date:
Additional Customer
Requirements:
Executed on the dates set forth below by the undersigned authorized representative of Customer and
Service Provider to be effective as of the Start Date.
[ENTER CUSTOMER NAME] (CUSTOMER) [ENTER SERVICE PROVIDER NAME] (SERVICE
PROVIDER)
By: __________________________________ By: ________________________________________
Name: Name:
Title: Title:
Date: Date:
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