EFFECTIVE DATE: January 1, 2024
This Master Services Agreement ("Agreement") is made and entered into by and between MSP PLUS OS INC, a Nevada Corporation ("MSP+OS" or "Company"), and the individual or entity ("Client"), collectively referred to as the "Parties." This Agreement is effective as of the date executed by the Client below.
In consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
- SCOPE OF SERVICES.
- MSP+OS agrees to provide services ("Services") to the Client as detailed in separate addenda, change orders, proposals, or statements of work (each a "SOW"), which shall be governed by the terms of this Agreement.
- Each SOW must be signed by Client and will describe the specific Services to be performed, the fees, payment schedule, delivery timeline, and any other relevant details. Each SOW will become a part of this Agreement upon execution.
- Client acknowledges that any services not explicitly mentioned in a SOW are out of scope. If Client requests any material changes to the scope of Services after execution of a SOW, Company will provide to Client a summary of any effect the requested changes will have on delivery, timeline, and cost in a written amendment to the SOW (a "Change Order"). A Change Order will not be deemed binding until signed by Client.
- Many services include an onboarding / discovery period in which the MSP+OS team will be reviewing, documenting, and preparing to perform the Services in this Agreement. This timeframe can vary depending on the size of the Client, complexity of the project, Client-specific needs and/or other factors. This onboarding/discovery period is essential to the success of our Services. The Client acknowledges, understands, and accepts that, during this time, not all the Services available to them under this Agreement can be performed until after the onboarding/discovery period ends and is appropriate based on the Service and timelines to execute.
- Fees; Expenses. Client shall pay to Company all fees as set forth in the applicable SOW (collectively, "Fees"). Additionally, Client shall reimburse Company for all reasonable, pre-approved, out-of-pocket expenses incurred in the scope of Services (collectively, "Expenses").
- Payments. Payment terms for Services rendered under each SOW shall be as specified in the respective SOW. The Client agrees to pay all invoices in accordance with the terms specified therein. Client must dispute any Fees or Expenses invoiced prior to the applicable due date. Any undisputed amounts due to Company under this Agreement not received by the applicable date due will be subject to interest of one and one-half percent (1.5%) per month, or the maximum interest permitted by law, whichever is less. Additionally, Company may, without liability to Client, suspend Services under any SOW where undisputed Fees and Expenses are not paid within two (2) weeks of the applicable due date.
- Pricing. Any pricing information, estimates, and all other proposed solutions included in this Agreement, or any SOW, are based on MSP+OS'S understanding and assumptions of the requirements and environment represented in the corresponding SOW, and on MSP+OS being awarded the entire scope of the work being requested (collectively, the "Conditions"). In the event any of the Conditions are not accurate or if any Condition changes or is altered during the term of this Agreement, MSP+OS shall have the right to terminate this Agreement and any related SOW immediately upon notice to Client.
- Events of Default; Remedies. The following events shall constitute events of default by Client under the Agreement (hereinafter, each an "Event of Default"):
- Client's failure to make any payment on the date owed.
- Client's breach or failure to comply with any agreement, covenant, condition, representation, requirement, or provision of the Agreement.
- Client's inability to pay its debts generally as they come due.
- Client is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of creditors, or enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations.
Upon the occurrence of an Event of Default, all unpaid installments shall become immediately due and payable.
Unpaid balances that are 30 or more days past due under this agreement, may, without limiting our rights and additional remedies, accelerate your unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable, and suspend MSP+OS services for this and any other active Agreement for this Client regardless of payment status until such amounts are paid in full.
Unpaid balances that are 90 or more days past due under this agreement may result in additional action by MSP+OS to remedy the outstanding balance(s), which includes, but is not limited too nor limiting additional actions:
- Referring your unpaid balance and Agreement to a 3rd party collections agency.
- Report negative remarks on the Client's credit history.
- Seek remedy by lawsuit or other civil judicial process.
- Other appropriate, reasonable, and legal remedies to recover monies owed to MSP+OS.
In such an event, the Client assumes and is responsible for all unpaid balances, interest or finance charges, fees, attorney's fees, court fees and any other charges incurred by MSP+OS to recover or remedy the outstanding balance(s).
Notwithstanding any provision to the contrary in this Agreement, an "Event of Default" shall not include any failure or delay in payment by the Client receiving an invoice if such failure or delay is solely attributable to a good faith and reasonable dispute between the Parties regarding the accuracy, validity, or appropriateness of the invoiced amount (a "Reasonable Invoice Dispute").
In the event of a Reasonable Invoice Dispute, the Client shall promptly, but no later than 30 days after receipt of the disputed invoice, notify the MSP+OS issuing the invoice in writing of the specific details of the dispute, including the reasons for the dispute and any supporting documentation or evidence.
The Parties shall cooperate in good faith to resolve the Reasonable Invoice Dispute within 30 days of the Client's notification to the MSP+OS. During the dispute resolution period, the Client shall not be considered in breach of this Agreement, and MSP+OS shall not exercise any rights or remedies arising out of an Event of Default.
If the Parties are unable to resolve the Reasonable Invoice Dispute within the timeframe specified above, either Party may pursue any available remedies under this Agreement or at law or in equity, provided that the Client's failure or delay in payment due to a Reasonable Invoice Dispute shall not, by itself, constitute an Event of Default.
Upon resolution of the Reasonable Invoice Dispute, the Client shall promptly pay any undisputed amounts determined to be due and owing to the MSP+OS, together with any applicable interest or penalties, as specified in this Agreement.
- Definition. "Confidential Information" means, to the extent previously, presently or subsequently disclosed by or for a Party ("Discloser") to the other Party ("Recipient"), all non-public information of Discloser that either (a) has economic value by virtue of its being confidential, (b) is explicitly marked as being confidential or under the circumstances of disclosure reasonably ought to be considered confidential, or (c) would cause material harm or disadvantage to the Discloser if disclosed to third parties. Confidential Information includes, without limitation, Company IP and the Discloser's original works of authorship, technical data, trade secrets, know-how, research, software, processes, technology, designs, drawings, marketing, financial or other business information. "Confidential Information" does not include information which (w) is known to Recipient at the time of disclosure as evidenced by written records of Recipient, (x) is or becomes publicly known and made generally available through no wrongful act of Recipient, (y) has been rightfully received by Recipient from a third Party who is authorized to make such disclosure, without breach of this Agreement by the Recipient, and not otherwise in violation of the Discloser's rights, or (z) was independently developed by the Recipient without any use of Confidential Information, as evidenced by written records.
- Non-Use and Non-Disclosure. As to the Discloser's Confidential Information, Recipient shall not, during the term of this Agreement and for a period of five (5) years thereafter, use Discloser's Confidential Information for any purpose whatsoever other than the performance of this Agreement, nor shall Recipient disclose Discloser's Confidential Information to any third party that does not have a need to know such information for purposes of this Agreement. It is understood that said Confidential Information is and will remain the sole property of Discloser. Recipient further shall take all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information including, but not limited to, having each employee of Recipient with access to any Confidential Information, if any, execute a nondisclosure agreement containing provisions in Discloser's favor no less restrictive than this Section 3. These restrictions will not prevent either Party from complying with any law, regulation, court order or other legal requirement that purports to compel disclosure of any Confidential Information. Recipient will promptly notify Discloser upon learning of any such legal requirement and cooperate with Discloser in the exercise of its right to protect the Confidential Information before any tribunal or governmental agency. Such compelled disclosure will not render the information disclosed non-Confidential Information.
- Reference to this Agreement. The Parties and their personnel are entitled to disclose the existence of this Agreement and describe the Services in summary and general form, without revealing any Confidential Information. This Agreement supersedes any prior agreement entered into between the Parties relating to the confidentiality of any Confidential Information disclosed by Discloser.
- Return of Materials. Upon Discloser's request, Recipient shall return or destroy all of Discloser's property or Confidential Information that Recipient may have in its possession or control. Upon such request, Discloser must provide an itemized list of Confidential Information with instruction that Recipient either return or destroy such Confidential Information.
- NON-SOLICITATION. Both the Company and the Client acknowledge and agree that the employees and subcontractors of the other party are valuable assets. Accordingly, each party agrees that, for the term of this Agreement and for a period of twenty-four (24) months thereafter, neither party shall, directly or indirectly, solicit the services of any employee or contractor of the other party who performs Services for the benefit of the soliciting party or otherwise attempt to reduce an employee's or contractor's business relationship with the other party. The foregoing is not intended to restrict either party from accepting unsolicited responses from public job postings.
- INTELLECTUAL PROPERTY AND WORK PRODUCT
- Definition of Intellectual Property. For purposes of this Agreement, the term "IP" refers to all confidential or proprietary materials in which MSP+OS or its affiliates have an intellectual property interest, that have not been created specifically for Client, including, without limitation, computer programs, methodologies, templates flowcharts, and documentation, as well as copyrights, trademarks, service marks, ideas, concepts, know-how, techniques, knowledge, or data, and any derivatives thereof, which have been originated, developed, or purchased by MSP+OS, a parent or affiliate of MSP+OS, or by third parties under contract to MSP+OS or to a parent or affiliate of MSP+OS.
- Definition of Work Product. "Work Product" means tangible and intangible personal property developed or purchased solely for or by Client pursuant to the terms of this Agreement and an applicable SOW.
- Company IP; Ownership. MSP+OS shall retain ownership of all methodologies, strategies, tools, processes, lessons, concepts, designs, artwork, notes, records, drawings, trade names, service marks, documentation, and other materials (as well as all IP rights subsisting therein) ("Company IP") provided to Client by the Company in the course of Services. Client shall not use, reproduce, display, perform, or create derivative works of Company IP except in the course of receiving the Services. Any use of Company IP by Client will inure to the benefit of Company. Client shall not challenge MSP+OS'S sole and exclusive ownership of the Company IP.
- Work Product; Ownership. Until the Client has paid and fully satisfied its obligations under the applicable SOW and this Agreement, MSP+OS shall retain title to and ownership of all Work Product. In the event of a default by Client, MSP+OS shall have the right to enter upon any location where Work Product is located and to take possession of, remove, or render inoperable any Work Product.
- Work Product; Licensing. To the extent that existing Company IP is incorporated in any deliverables (including Work Product), MSP+OS grants to Client a royalty-free, irrevocable, worldwide, nontransferable, non-exclusive, internal use, perpetual license to use, modify, and prepare derivative works of such IP and to use and display such IP, but only to the extent required to utilize the deliverables in accordance with all limitations in this Agreement and as may be set forth in the relevant SOW. Nothing in this Section shall be deemed to permit Client to disclose, provide access to, sublicense, disassemble, decompile, reverse engineer, modify, create derivative works of, or transfer any of MSP+OS'S or its licensor's IP to a subsidiary, affiliate, or third party without prior, written consent of MSP+OS. Furthermore, nothing herein shall be construed as limiting MSP+OS'S ownership of any patent, copyright, or other intellectual property or trade secret rights in any information developed independently of this Agreement even though such information may have been used in connection with MSP+OS'S performance of its obligations under this Agreement. Nothing herein shall prohibit MSP+OS or its affiliates or any of their employees or subcontractors from providing similar services to others and/or from using or disclosing to others the general knowledge, skill, and experience that they have developed over the years, including the general knowledge, skill, and experience that MSP+OS and they develop under this Agreement.
- CLIENT RESPONSIBILITIES
- Unless otherwise specified, Client shall be responsible for preparing a suitable installation site and connecting its product(s) compatible with manufacturer's specifications.
- Client must make certain personnel or other resources available to MSP+OS in a timely manner and acknowledges that its failure to do so may prevent MSP+OS from meeting milestones and delivery dates.
- The Client is solely responsible for maintaining active login and system access for the MSP+OS team to fulfill the terms of this Agreement and any applicable SOW. Should the MSP+OS team not be able to access your Client system(s), any service level agreement (SLA) response times will be suspended until the system access is resolved. Additionally, a lack of access to system(s) required to perform the services provided in this Agreement does not constitute a valid form of termination, credit for unused services or other renumeration.
- Client assumes full responsibility to back-up and/or otherwise protect all data against loss, damage, breach, or destruction.
- Client represents and warrants that Client has title to or has a license or the right to use or modify the Software License or right to permit MSP+OS to use, access or modify any Software License that Client has requested MSP+OS to use, access or modify as part of the Services. It is Client's responsibility to independently ensure that ALL Software Licenses in use by Client are properly licensed. MSP+OS will not promote the use of, or knowingly support software which is not properly licensed by Client. Assistance with software audits or Software Licensing compliance matters are billable at MSP+OS's then current hourly rates.
- During the course of performing the services outlined in this Agreement, it is essential that both MSP+OS and the Client honor and attend scheduled meetings with one another. While not all our services require regular meetings, most are critical to ensuring the continued progress and success of Services being performed. As such, missed meetings can slow and even delay our Services and meeting the goals discussed for the Services provided. While unforeseen circumstances, illness or other factors are a fact of life, we ask that all of our Clients provided at least 12-hour notice to cancel or reschedule a meeting. Habitual or critical missed meetings without notice may result in a no-show or hour-deduction penalty at the discretion of MSP+OS.
- Consent to Contact Vendor. During the course of performing the Services outlined in this Agreement, MSP+OS may be required to contact additional support or sales provided by the software manufacturer (vendor) on the Client's behalf. The Client agrees and consents to MSP+OS contacting the vendor on their behalf, open a "service ticket" and follow-up with the vendor.
- WARRANTIES AND REPRESENTATIONS
- Company Warranties & Representations. Company warrants and represents that (a) it has the right and power to enter into and fully perform this Agreement and (b) the Services will be performed in a professional and workmanlike manner, in accordance with the then-current standard industry practices for services of a similar nature. Client agrees that MSP+OS shall bear no responsibility for the performance, repair, or warranty of any third-party software or hardware products that may be included in or referred to in the SOW, and Client shall look solely to such third party for all remedies and support regarding such products or services.
- Indemnification by Client. Client shall defend, indemnify and hold harmless Company and its members, managers, agents, and employees from and against all claims, losses, costs (including reasonable attorneys' fees), damages, demands, discovery and proceedings (collectively, "Claims") arising from or in connection with (a) Client's gross negligence or willful misconduct, or (b) any third-party allegation that, if true, would constitute a material breach of any of Client's obligations, warranties, or representations under this Agreement. Client agrees to hold harmless MSP+OS from claims for application failures, data loss, or other harm, injury, or damage suffered as a result of software bugs or incompatibilities, spyware, hacking, or any other unauthorized system access, sabotage, or information theft.
- Indemnification by Company. Company shall defend, indemnify, and hold harmless Client from and against all Claims arising from or in connection with (a) Company's gross negligence or willful misconduct, or (b) any third-party allegation that, if true, would constitute a material breach of any of Company's obligations, warranties, or representations under this Agreement.
- Procedure for Indemnification. A Party entitled to indemnification under this Section 7 shall provide the indemnifying Party with (a) prompt written notice of such claim, (b) control over the defense and settlement of such claim and (c) proper and full information and assistance to settle and/or defend any such claim, provided that the indemnifying Party may not make any settlement that either imposes liability or admission of guilt on the indemnified Party without such Party's prior written consent.
- Warranty and Disclaimer. EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER ORAL OR WRITTEN, WHETHER EXPRESS, IMPLIED, OR ARISING BY STATUTE, CUSTOM, COURSE OF DEALING OR TRADE USAGE, WITH RESPECT TO THE SUBJECT MATTER HEREOF, IN CONNECTION WITH THIS AGREEMENT. EACH PARTY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
- TERM AND TERMINATION
Term. The "Term" of this Agreement begins on the Effective Date and, unless terminated earlier in accordance with Sections 8.2 and 11.3 of this Agreement, continues until the later of: (a) two years following the Effective Date; or (b) the expiration, termination, or fulfillment of all obligations under all Statements of Work (SOWs) made in connection with this Agreement. For clarity, upon the occurrence of the latter event, this Agreement shall expire or be terminated automatically without the need for further action by either Party.
Notwithstanding the expiration or termination of this Agreement as stated above, the Parties may agree to extend the Term of this Agreement by mutual written consent at any time. Additionally, subsequent to the expiration or termination of this Agreement, the Client may accept new SOWs which shall become effective upon such acceptance and be governed by the terms of this Agreement. For such new SOWs to be valid, they must be documented in writing, include a reference to this Agreement, and indicate the Client's acceptance, which shall serve to reactivate the terms of this Agreement solely with respect to the services and obligations contained within the accepted SOW.
- Termination: This Agreement may be terminated upon the occurrence of any of the following:
- by MSP+OS at any time upon written notice if Client fails to promptly pay in full to MSP+OS any amounts, charges or taxes required to be paid under this or any other agreement with MSP+OS;
- by either Party at any time in the event of a material breach of the terms hereof by giving the other Party ninety (90) days written notice stating the nature of the breach. This Agreement and all SOWs shall then terminate if the breaching Party shall fail to cure such material breach within ninety (90) days of receipt of written notice thereof. If the breach is of such a nature that it cannot reasonably be cured within such period, the breaching Party shall commence to cure said breach within such period, then diligently prosecute such cure to completion;
- by either Party at any time in the event the other Party becomes insolvent or seeks protection, voluntarily or involuntarily, under bankruptcy or receivership law, or executes an assignment or similar document for the benefit of creditors;
- by either Party, for any reason or no reason, upon ninety (90) days written notice to the other Party, unless otherwise bound by a term commitment as part of the SOW.
- Survival. Termination of this Agreement shall also constitute termination of all SOWs. Termination does not relieve Client's obligations to pay all accrued fees and amounts. In the case of any leases, the outstanding balance is due in full upon termination of the applicable SOW. The termination of any SOW in accordance with its terms shall not terminate this Agreement or any other SOW. Sections 3, 4, 5, 7, 8, 9, 10, and 11 shall expressly survive the termination of this Agreement.
- Termination Charges. If any SOW is terminated early for any reason other than by MSP+OS in accordance with Section 8.2(d) above, then a termination charge shall be due from Client to MSP+OS on the termination date. The termination charge for each Service is as set forth on the applicable SOW. Client agrees that the damages that would be sustained by MSP+OS from Client's early termination or default of a SOW or this Agreement cannot readily be determined, and that the termination charge constitutes "liquidated damages" and not a penalty. Client waives any claim that such termination charge constitutes a penalty.
- LIMITATION OF LIABILITY
- IN NO EVENT SHALL MSP+OS BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PERFORMANCE OR BREACH THEREOF OR ANY WARRANTY CLAIM, EVEN IF MSP+OS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MSP+OS'S TOTAL LIABILITY TO CLIENT HEREUNDER, IF ANY, SHALL IN NO EVENT EXCEED THE LESSER OF THE TOTAL OF THE AMOUNTS PAID TO MSP+OS HEREUNDER BY CLIENT OVER THE THREE (3) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM OR TEN THOUSAND DOLLARS ($10,000).
- IN NO EVENT SHALL MSP+OS BE LIABLE TO CLIENT FOR (a) ANY DAMAGES RESULTING FROM OR RELATED TO ANY FAILURE OF ANY ANTI-VIRUS SOFTWARE, ONLINE BACKUP SERVICE, BACKUP SOFTWARE, FIREWALLS, OR OTHER SECURITY-RELATED SOFTWARE OR HARDWARE; (b) ANY DAMAGES RESULTING FROM OR RELATED TO ANY VULNERABILITY IN CLIENTS COMPUTER SYSTEM, INCLUDING AS A RESULT OF HACKING BY A THIRD PARTY; (c) ANY LOSS OF, OR DAMAGE TO, ANY OF CLIENTS' RECORDS OR DATA; OR (d) FAILURE OF AIR-CONDITIONING, HUMIDITY CONTROL, AND ELECTRICAL POWER; PROVIDED THIS SENTENCE SHALL NOT LIMIT MSP+OS'S LIABILITY TO THE EXTENT THAT SUCH FAILURE OR LOSS IS CAUSED BY AN ACT OR OMISSION OF MSP+OS THAT CONSTITUTES A BREACH BY MSP+OS OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR OF ITS WARRANTIES UNDER SECTION 7.
- NO ACTION WHATSOEVER ARISING OUT OF THE TRANSACTIONS OR SERVICES RELATED TO OR UNDER THIS AGREEMENT OR ANY SOW MAY BE INITIATED BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED, EXCEPT FOR PAYMENTS OWED HEREUNDER.
- Information security threats are continually changing, with new vulnerabilities discovered daily. MSP+OS makes no representations, warranties, guarantees, or legal certifications related to identification of such vulnerabilities. If provided as part of the Services, Client acknowledges that vulnerability testing does not protect against personal or business loss. MSP+OS offers no representation, warranties, guarantees or legal certifications concerning the applications or systems it tests. MSP+OS does not warrant that the resources tested are suitable to task, free of other defects, fully compliant with any industry standards, or fully compatible with any operating system, hardware, or other application.
- INDEMNIFICATION. Client hereby agrees to indemnify, hold harmless, and defend MSP+OS its affiliates and its and their respective shareholders, members, managers, directors, officers, employees, agents, and other representatives from and against any and all losses and liabilities suffered, incurred by or asserted against MSP+OS as a result of, or that arise out of, in connection with, or related to the Client Materials and any third-party claim resulting from the infringement of any third parties' trade secret, trademark, copyright, patent rights, or software license infringement by Client, its affiliates, and representatives.
- Binding Agreement. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Company, in whole or in part, whether voluntarily or by operation of law, except in connection with a merger or the sale of all or substantially all of the assets of Company, without the prior written consent of Client, which consent will not be unreasonably withheld. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns. Any assignment in violation of the foregoing will be null and void.
- Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth in the preamble to this Agreement. Either Party may change its address for notice by notice to the other Party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, three business days after deposit in the mail as set forth above, or one (1) day after delivery to an overnight air courier service.
- Force Majeure. For purposes of this Agreement, a "Force Majeure" means: the interruption of or material interference with the preparation, commencement, production, completion, or distribution of the Services by any cause or occurrence beyond the control of both Parties. Neither Party shall be liable to the other Party for any failure to perform under this Agreement because of a Force Majeure event. Each Party agrees to give the other prompt written notice of the occurrence of any Force Majeure event, the nature thereof, and the extent to which the affected party will be unable to fully perform its obligations under this Agreement. Each affected Party further agrees to use its best efforts to correct the Force Majeure event as quickly as practicable and to give the other party prompt written notice when it is again fully able to perform such obligations.
- Waiver. Any waiver of the provisions of this Agreement or of a Party's rights or remedies under this Agreement must be in a signed writing to be effective. Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of such Party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such Party's right to take subsequent action. No exercise or enforcement by either Party of any right or remedy under this Agreement will preclude the enforcement by such Party of any other right or remedy under this Agreement or that such Party is entitled by law to enforce.
- Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the Parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the Parties fail to agree on such an amendment, such invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
- Integration. This Agreement (and all SOWs) states the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the Parties with respect to said subject matter. No terms, provisions or conditions of any purchase order, acknowledgement, or other business form that either Party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties, or obligations of the Parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving Party to object to such terms, provisions, or conditions.
- Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
Governing Law and Dispute Resolution. The formation, construction, performance, and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Nevada without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association ("AAA"). The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys' fees and costs. In all other circumstances, the parties specifically consent to the jurisdiction of the local, state, and federal courts located in Las Vegas, Nevada. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail.
The arbitration shall take place in Las Vegas, Nevada, before a single neutral arbitrator appointed in accordance with the Commercial Arbitration Rules then in effect of the AAA (the "AAA Rules"). The arbitrator shall render a final decision pursuant to the AAA Rules within thirty (30) days after filing of the claim. The final decision of the arbitrator shall be furnished to the Parties in writing and shall constitute the conclusive determination of the issue in question binding upon the Parties and shall not be contested by any of them. Such decision may be used in a court of law only for the purpose of seeking enforcement of the arbitrator's decision. The prevailing party shall be entitled to reasonable attorneys' fees, costs, and necessary disbursements in addition to any other relief that such party may be entitled. For purposes of this Agreement, the prevailing party shall be that party in whose favor final judgment is rendered or who substantially prevails, if both parties are awarded judgment.
- Independent Contractors. The Parties acknowledge and agree that Company is an independent contractor. Nothing in this Agreement will in any way be construed to constitute Company as an agent, employee, or representative of Client, but Company shall perform the Services hereunder as an independent contractor. Company shall furnish all tools and materials necessary to accomplish this contract, and will incur all expenses associated with performance, except as expressly provided on the applicable SOW. Company acknowledges and agrees that Company is obligated to report as income all compensation received by Company pursuant to this Agreement, and Company acknowledges its obligation to pay all employment and other taxes thereon.
- AMENDMENT CLAUSE
- Unilateral Non-Material Amendments: MSP+OS reserves the right to unilaterally make non-material amendments to this Master Services Agreement. Non-material amendments are defined as changes that do not significantly alter the rights or obligations of the Client under this agreement.
- Notification of Amendments: In the event of any such non-material amendments, MSP+OS shall provide the Client with a written notice of these changes at least 30 days prior to the changes taking effect.
- Publication of Amendments: The amended version of the Master Services Agreement will be published on https://www.mspplusos.com/terms and will replace any previous versions of the agreement from the date specified in the notice.
- Client Acknowledgment: The continued use of MSP+OS's services by the Client after the end of the 30-day notice period shall constitute the Client's acceptance of the amended agreement.
- Material Changes: Any material changes to this agreement that significantly impact the rights and obligations of the Client will require mutual written consent from both MSP+OS and the Client, in accordance with the original terms of this agreement.
- Contact Information for Notices: All notices related to amendments under this clause shall be sent to the Client at the contact information provided in this agreement or as updated by the Client from time to time.
- Severability: If any part of this amendment clause is found to be invalid, illegal, or unenforceable, the rest of the agreement shall remain in effect as if the invalid, illegal, or unenforceable part had never been included.
IN WITNESS WHEREOF, the Parties intend to be bound by the terms of this Agreement as evidenced by their signatures on any SOW to which this Agreement applies. Both Parties consent to the use of digital signatures as proof of this legally binding commitment. Client consents to receive this Agreement and any notices hereunder by such electronic delivery and agrees to participate through any on-line or electronic system that may be established and maintained by Company, or a third party designated by Company.