This Data Services Agreement is used when a company wishes to outsource certain of its data services requirements to a data services agency. This document contains the material terms and conditions of the agreement including the services to be provided, a fee and payment schedule and the term of the agreement. It contains numerous standard clauses as well as options for customization to address the specific needs of the contracting parties. This agreement should be used by a data services agency when providing services to a client.
This Data Services Agreement is used when a company wishes to outsource certain of its data services requirements to a data services agency. This document contains the material terms and conditions of the agreement including the services to be provided, a fee and payment schedule and the term of the agreement. It contains numerous standard clauses as well as options for customization to address the specific needs of the contracting parties. This agreement should be used by a data services agency when providing services to a client. Data Services Agreement This agreement is entered as of _________________, [Instruction: Insert date.] by and between __________________, [Instruction: Insert hiring company name.] a _____ [Instruction: Insert company formation information.] ("Company"), and _______________________, [Instruction: Insert data services company name.] a ______ [Instruction: Insert data services company formation information.] ("Data Services Agency") (“Agreement”). WHEREAS Company wishes to outsource certain of its data services requirements; and WHEREAS Data Services Agency is in the business of providing such data services and wishes to assume such obligations. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows. 1. Data Services Agency shall perform the following tasks (each, an “Outsourced Service” and collectively, the “Outsourced Services”), as Company’s agent: A. Data Services Agency will establish and maintain an organization and process to provide data support services to Customer as more fully set forth in Exhibit A- Data Support Services. Such support services may generally include such items as firewall development and installation, develop and maintain a disaster recovery plan for Company in the occurrence of a disaster situation and periodically test such plan, database replication and system backup. [Comment: Parties may wish to more fully set forth the types of services to be provided here.] 2. Data Services Agency will provide the Outsourced Services upon the following schedule ______. [Comment: Insert the agreed upon times. If disaster recovery and subsequent business interruption is part of the agreed upon services, parties should carefully consider the timing of recovery efforts herein. Included in this consideration should be where Company will set up alternate/temporary location and if same changes any of the fee schedule.] 3. Data Services Agency shall be paid for the Outsourced Services according to the fee and payment schedule set forth as Exhibit B-Fee and Payment Schedule. 4. This Agreement shall commence on the date hereof and shall continue for a period of one (1) year from the date hereof (the "Initial Term"). This Agreement shall automatically be extended for successive one (1) year terms (each a "Renewal Term") unless either party gives the other written notice of its intention not to extend this Agreement at least ninety (90) days prior to the end of the then current term, or unless terminated as provided elsewhere herein (the Initial Term, together with each Renewal Term, if any, being collectively referred to herein as the "Term"). Any time after expiration of the Initial Term, Data Services Agency may change the prices and terms on which Outsourced Services will be provided by providing at least one hundred twenty (120) days prior written notice to Company (the "Fee © Copyright 2011 Docstoc Inc. 2 Notice Period"). Company shall have the right, in its sole discretion, to reject such changes and, in such case; this Agreement shall automatically terminate without penalty to either party upon expiration of the Fee Notice Period. [Instruction: Parties may revise the language set forth in this paragraph to reflect their agreement.] 5. The parties hereto agree that Data Services Agency’s performance of some or all of the Outsourced Services hereunder may be terminated as set forth herein. It is parties’ mutual understanding that a termination of provision of one Outsourced Service shall not be deemed a termination of provision of any or all other types of Outsourced Services set forth herein. In the event provision of one type of Outsourced Service is terminated, provision of all other types of Outsourced Services shall be ongoing, unless separately terminated pursuant to the terms of this Agreement by the terminating party. 6. Company shall permit reasonable access for Data Services Agency to its facilities in connection with work hereunder as required. No charge shall be made for such visits. 7. Data Services Agency will undertake all reasonable efforts to provide data services pursuant to the terms of this Agreement but Data Services Agency does not guarantee that the any such service will be error-free. [Comment: If data management services are included in scope of services, parties may wish to include additional language regarding obligations with respect to same, if other than as set forth herein.] Data Services Agency shall not be held responsible for the actions (whether intentional or unintentional, in good faith or otherwise) of any of Company’s employees (which shall include for purposes of this Agreement, Company’s employees, contractors, directors and agents) with respect to saving or backing up of data, or other utilization of any system for which Data Services Agency provides Outsourced Services hereunder which may cause such system, or computer to make any data obsolete. THE FOLLOWING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR PROMISES TO CUSTOMER OR ANY THIRD PARTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING BY STATUE, LAW, COURSE OF DEALING, CUSTOM AND PRACTICE OR TRADE USAGE. EXCEPT AS PROVIDED ABOVE, THE SERVICES AND MAINTENANCE ARE PROVIDES 'AS IS'. Data Services Agency is not liable for incidental, special or consequential damages for any reason (including loss of data or other business or property damage), even if foreseeable or if Company has advised of such a claim. Data Services Agency’s liability shall not exceed the fees that Company has paid under this agreement. Company agrees that the pricing for the services would be substantially higher but for these limitations. 8. Company hereby understands, acknowledges and agrees that in any data services support, a potential for data loss exists. It shall be Company’s sole responsibility to perform any required, necessary, requested or desired data backup. Data Services Agency shall not be liable for any such data loss, or any loss to Company as a result of such data loss. Company shall also be solely responsible for any data reinstallation, except as otherwise set forth in this Agreement or pursuant to a separate agreement between the parties. © Copyright 2011 Docstoc Inc. 3 9. Except as required in the performance of its obligations under this Agreement or with the prior written authorization of the Company, the Data Services Agency (including for purposes hereof, its employees, agents, representatives, consultants and contractors) shall not directly or indirectly use, disclose, disseminate or otherwise reveal any confidential information, including but not limited to information regarding Company personnel, and shall maintain confidential information in confidence for a period of five (5) years from the date of termination or expiration of this Agreement, for whatever reason. Upon termination or expiration of this Agreement for any reason whatsoever, Company and Data Services Agency shall leave with or return to the other all documents, records, notebooks, computer files, and similar repositories or materials containing confidential information of the other party and such other party's affiliates, including any and all copies thereof. Any data serviced pursuant to this Agreement is and shall remain the exclusive property of Company, and Company shall retain any and all applicable rights in and to such data. 10. With respect to all matters relating to this Agreement, Data Services Agency shall be deemed to be an independent contractor. Data Services Agency shall not represent itself or its organization as having any relationship to Company other than that of an independent agent for the limited purposes described in this Agreement. Nothing in this Agreement shall be deemed to create any joint-venturer, employee-employee relationship or partnership agreement between the parties hereto. 11. [Comment: Parties may wish to discuss and include here mutual indemnification language with respect to potential claims regarding the provision of the specified services, and specifically, the potential for data loss. As the scope of indemnification language is very broad, no specific language is included herein.] 12. In the event of litigation to resolve a dispute pursuant to this Agreement, the prevailing party shall be entitled to collect reasonable attorney’s fees and costs in addition to any judgment. 13. This Agreement shall remain in effect for the term specified herein unless otherwise terminated by the parties. Either party may terminate this agreement in whole or in party by giving not less than ninety days’ written notice to the other party by registered mail to the principal place of business of the other. Notice of termination shall become effective upon receipt of such notice by the party to whom it is addressed. Each party shall remain liable hereunder during such notice period. 14. All indemnification obligations shall survive the termination of our services or the termination or expiration of this Agreement. [Comment: If no indemnities are provided, delete this language.] 15. No waiver by either party of the breach of any term or condition of this Agreement will constitute a waiver of, or consent to, any subsequent breach of the same or any other term or condition of this Agreement. © Copyright 2011 Docstoc Inc. 4 16. This Agreement will be governed by the law of the State of _____ [Instruction: Insert state.]. 17. The pronouns used herein shall include, where appropriate, either gender or both, singular and plural. 18. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No revision, amendment or modification may be made except in a writing signed by both parties. 19. The covenants, obligations and conditions herein contained shall be binding on and inure to the benefit of the heirs, legal representatives, and assigns of the parties hereto. 20. This Agreement or any subsequent amendment or modification hereto may be executed by facsimile and/or in one or more counterparts, each of which when so executed and delivered shall be deemed an original, but all of which taken together shall constitute but one and the same original. Each party shall accept any such signed faxed counterpart as full execution of this Agreement or any subsequent amendment or modification thereto. 21. The terms of this Agreement are confidential and no press release or other written or oral disclosure of any nature regarding the terms of this Agreement shall be made by either party without the other party’s prior written approval; however, approval for such disclosure shall be deemed given to the extent such disclosure is required to comply with governmental rules or a valid court order. 22. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. IN WITNESS WHEREOF the parties have executed this Agreement on the day and year first indicated above. [Instruction: Insert parties’ signature blocks.] © Copyright 2011 Docstoc Inc. 5 Exhibit A-Data Support Services © Copyright 2011 Docstoc Inc. 6 Exhibit B-Fee and Payment Schedule © Copyright 2011 Docstoc Inc. 7
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