Master Services Agreement
Published: December 22, 2021
Effective: January 01, 2022
1. INITIAL TERM
THE EXECUTED ELECTRONIC SIGNATURE BY "THE CUSTOMER" AND SYSTEMS X CORPORATION WILL DETERMINE THE START OF THE ONE (1) to THREE (3) YEARS TERM FROM THE "COMMENCEMENT DATE" AS AGREED TO BY "THE CUSTOMER" AND SYSTEMS X CORPORATION IN THE MANAGED SERVICES PROPOSAL REFERENCING THIS MASTER SERVICES AGREEMENT.
MSP refers to the Managed Services Proposal which is the written commercial proposal that Systems X Corporation provided the Customer that details the service delivery offering and the associated investment.
MSA refers to the Master Services Agreement which is equivalent to a contract for the IT Managed Services as detailed in the MSP entered into by the Customer and Systems X Corporation.
Systems X refers to the legal entity Systems X Corporation representing the service provider delivering IT managed services as detailed in the MSP and work orders and governed under the executed MSA.
Customer ("The Customer") refers to the legal entity associated with the party contracting IT managed services as detailed in the MSP and work orders and governed under the executed MSA.
Affiliate refers to a controlled company under common control or controlling a party or entity during the period of such authority. For the MSA, "control" means ownership, directly or indirectly, of more than 50% of a party or entity's voting securities.
Services refer to the technical, support, implementation, or professional services and any related deliverables provided or to be provided by Systems X for the Customer under the MSA and or work order describing such services and these services terms. The services performed under a work order may be referred to as “Professional Services” or “Technical Services”, as applicable, based on the nature and type of such services.
Deliverable refers to all property, reports, source code, analyses, recommendations, data, specifications, software, documentation, items, videos, recordings, and other materials provided, created, developed, and delivered according to and described in the MSA and or work order.
Law refers to any local, state, national, administrative, and foreign laws, treaties, regulations, and orders applicable to a party.
Work Order refers to a written or electronic (a) work order, (b) statement of work, or (c) other ordering documents incorporating these services terms and all exhibits or other documents attached to or incorporated by reference (“Attachments”) therein, describing the services purchased by the Customer and executed by Systems X and the Customer or the Customer alone, as applicable.
Work Product refers to all software, authorship, or work developed for the Customer in providing the services, including any deliverables produced in connection therewith, whether created solely or jointly with others.
Personal Information refers to information capable of identifying an individual or as defined under applicable federal, state, local, or administrative law, whichever is broader.
CCPA refers to the California Consumer Privacy Act of 2018 which gives consumers more control over the personal information that businesses collect about them and provides guidance on how to implement the law.
3. PROVISION AND SCOPE OF SERVICES
Subject to the payment by the Customer to Systems X of the applicable fees (as defined in Section 4.1), Systems X will provide services in support of its computer, electronic, and information technology systems (“IT services”) for the initial term set forth above and as described in the MSP. Systems X will decide whether to perform IT services on-site or off-site. Systems X will not be responsible for providing any services, tasks, or items that are not included in the description of services in the MSP as such services, tasks or items shall be deemed out of the scope of the MSP and will require the execution of a work order with associated fees.
Systems X reserves the right, in its sole discretion, to use, assign and remove personnel in performing the services. If the services are made available to any Customer Affiliate(s) according to the terms of this MSA, then the term “Customer” shall also include such Customer Affiliate(s). Systems X will provide services under this MSA only to Customers (or a Customer Affiliate).
Upon expiration of the initial term, and upon expiration of each successive term, this MSA shall be automatically renewed and extended for successive additional one (1) year terms unless one of the parties hereto serves notice upon the other of intent not to renew the Agreement at least within the following period: (i) thirty (30) days prior to the renewal date in the case of an election not to renew by Systems X; and (ii) forty-five (45) days prior to the renewal date in the case of an election not to renew by the Customer.
4.1. Invoice and Payment
The monthly base rate set forth in the Systems X “MSP” covers the cost of IT services coming within the scope of included services. Charges for additional services, if any, requested or required by the Customer will be determined by agreement of the parties or, in the absence of agreement, will be charged at Systems X standard rates in effect at the time service is provided. The base rate does not include the cost of any hardware, software, equipment, or supplies or any out-of-pocket expenses incurred by Systems X unless specifically identified as included in the scope of this MSA.
Any other amounts due under this MSA (collectively, the “fees”) are quoted and payable in United States dollars. Unless otherwise provided in the applicable MSP and or work order, all fees (except for any disputed fees then subject to a billing dispute under Section 4.6) shall be due and payable within thirty (30) days of the invoice date. The Customer shall provide Systems X with complete and accurate billing and contact information, including a valid email address for receipt of invoices. All fees and payment obligations for services under any work orders are non-cancelable and fees paid are non-refundable, and quantities purchased cannot be decreased.
4.2. Incidental and Project Expenses
The Customer shall reimburse Systems X for all reasonable travel, food, lodging, and other out-of-pocket expenses incurred in the services’ performance and provision that are provided beyond a fifty (50) mile radius from the nearest Systems X office unless otherwise specified in the "MSP". If Systems X incurs any additional of the preceding or additional costs or expenses in providing the services, such expenses may be invoiced separately.
4.3. Overdue Payments
Without limiting the rights and remedies available to Systems X under this MSA or by Law, any fees not paid bythe Customer (except for any disputed fees then subject to a billing dispute under Section 4.6) within thirty (30) days of the invoice date shall accrue late charges at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses and fees for collection (including attorneys’ fees and court and administrative costs).
The fees are exclusive of all shipping costs and federal, state, and local sales, value-added taxes, goods and services taxes, use, excise, service, transaction, gross receipts, or similar taxes imposed on the services (collectively, “Taxes”), all of which the Customer agrees to pay, excluding taxes assessable against Systems X on its income, property, and employees. The Customer shall make all payments required without deduction of any Taxes, except as required by law, in which case the amount payable shall be increased as necessary so that after making any required deductions and withholdings, Systems X receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Suppose the Customer is exempt from paying any applicable taxes. In that case, the Customer shall promptly provide written evidence reasonably satisfactory to Systems X of its tax-exempt status, and Systems X will not include such Taxes in the Customer's invoices.
4.5. Suspension of Services for Non-Payment
If the Customer's account is more than thirty (30) days past due (except for any disputed fees then subject to a billing dispute under Section 4.6), in addition to any other rights or remedies it may have under this MSA or by Law, Systems X reserves the right to cease providing any or all services currently being performed or to be performed for the Customer, without liability to Systems X for such suspension. Such services shall only be resumed if the Customer pays the full amount of such invoiced fees (except for any disputed fees then subject to a billing dispute under Section 4.6) are paid in full.
4.6. Billing Disputes
Any dispute involving invoiced fees (a “billing dispute”) must be in writing and submitted to Systems X within thirty (30) days of the invoice date and include a reasonably detailed statement describing the nature and amount of the disputed fees as well as the reasonable and good faith bases for why a credit or refund is being requested (a “billing dispute notice”). The Customer shall cooperate with Systems X to promptly address and attempt to resolve any billing dispute submitted in accordance herewith. The Customer acknowledges and agrees that in the event the Customer does not present a billing dispute notice in accordance with the foregoing, the Customer waives all rights to dispute such invoice, and all fees outlined in such an invoice will be considered correct and binding on the Customer. Notwithstanding any dispute of invoiced fees commenced in accordance with this Section 4.6, the Customer shall remain obligated to pay all undisputed fees within thirty (30) days of the invoice date.
4.7. Price Adjustments
Systems X shall have the right to propose an adjustment to the monthly base rate in the event of equipment purchases, substantial changes in the demand for IT services initiated by the Customer, material increases in costs to Systems X, or if the Customer demand for IT services during any twelve-month period increase due to a merger or acquisition. When an adjustment occurs, an addendum detailing the change will be signed by both parties and attached to this MSA. Fees may only be increased as follows: Systems X shall have the right to increase any or all service fees annually with the increase not to exceed 9% of the current service fee within this MSA.
5. PROPRIETARY RIGHTS; OWNERSHIP
5.1. Systems X Property
In performing the services, Systems X may use products, materials, information, ideas, concepts, know-how, techniques, tools, templates, models, software, procedures, documentation, technology, interfaces, data and databases, reports, processes, best practices, and methodologies owned or licensed by, or developed on behalf of, Systems X or any of its partners or suppliers (collectively, the "Systems X property"). Subject to the limited rights expressly granted hereunder, Systems X and its licensors reserve and retain all right, title, and interest in and to the services and the Systems X property, respectively, including all patents and applications, therefore, copyrights, trademarks, domain name rights, trade secret rights and all other intellectual property rights (collectively, “intellectual property rights”) therein. No Systems X property shall be deemed to be a work product. Systems X may modify or improve any Systems X property at any time. Such Systems X property and Systems X’s rights (including all intellectual property rights) will consist of all enhancements, modifications, adaptations, and derivative works therein and thereto (whether made by Systems X, the Customer, a third-party, or jointly Except as expressly set forth herein, the Customer is not granted any right, title or interest in or to any Systems X property or any other equipment, supplies or materials owned, leased or licensed by or to Systems X, whether related to the performance of the services, use or operation of the deliverables or otherwise. All Systems X property is deemed to be Systems X confidential information.
5.2. Systems X Ownership of Work Product
Any (a) work of authorship fixed in any tangible medium of expression that is the subject matter of a copyright or potential application for registration therefore (including, but not limited to, object code and source code), (b) unpatented inventions, including but not limited to, physical parts or components, processes, techniques, programs or methods, (c) non-trademarked or non-service-marked distinctive symbols, pictures or words, (d) trade secrets, or (e) any other copyrightable, patentable and/or trademarkable intellectual property rights, whatsoever, associated with any ideas, symbols, marks, phrases, writings, drawings, inventions, machines, designs, concepts, techniques, methods, know-how, processes or works of authorship developed or created by: (i) Systems X and/or Systems X Personnel (collectively, the "Work Product") shall belong to Systems X; provided that the Customer shall retain a perpetual, irrevocable, non-exclusive, royalty-free license to use the Work Product in its day to day business operations so long as, subject to disclosure to co-workers and contractors in day to day business operations and rights of transfer as set forth in the Section entitled “Miscellaneous”, the Customer does not disclose (willfully) the work product, or sell or assign, in any capacity, its rights in said Work Product, to any third party (including Systems X Personnel and any director, officer, shareholder, member, manager, employee, agent, independent contractor, or representative of the Customer (“Customer Personnel”) without the express, written consent of Systems X, which consent may not be unreasonably withheld. Upon request of Systems X, the Customer shall, if necessary, take such actions, and shall cause the Customer Personnel to take such actions, including execution and delivery of any and all instruments of conveyance, necessary to grant title in and to the Work Product to and in the name of Systems X.
Authorization to use any software provided by Systems X to the Customer provides a personal, nonexclusive, limited, non-transferable, and temporary license to the Customer and the Customer affiliated entities. All rights are reserved. The Customer may not re-publish, transmit, or distribute the software, or make any unauthorized use of Systems X materials. Modification of such materials or the use of such materials for any purpose not authorized by Systems X is prohibited.
Nothing in this MSA will: (a) prohibit or limit Systems X’s use of ideas, concepts, know-how, methods, techniques, skill, knowledge, and experience that were used, developed, and gained in connection with Systems X’s provision of any services under these MSA terms or any work order; or (b) preclude Systems X from marketing, developing or using for any other purpose, any services or products for the benefit of Systems X or any other party. Systems X will continue to be free to use and exploit the services and any work product to undertake the same or similar services and provide the same or similar products to other customers and entities.
6.1. Confidential Information; Exceptions
Systems X and the Customer shall each retain in confidence all information transmitted to it by the other party pursuant to or in connection with this MSA that the disclosing party identifies as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”), and will make no use of such confidential information except under the terms and during the term of this MSA. Systems X confidential information includes Systems X property and work products; Customer confidential information consists of the Customer data; and confidential information of each party includes the terms and conditions of these MSA terms and the MSP and work orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. The parties shall treat the terms and conditions of this MSA as confidential; however, either party may disclose such information in confidence to its immediate legal and financial consultants as required in the ordinary course of that party’s business or in connection with due diligence involving a strategic investment or the sale of its stock or assets. Confidential information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing party; (b) was known to the receiving party before its disclosure by the disclosing party without breach of any obligation owed to the disclosing party; (c) is received from a third party without breach of any obligation owed to the disclosing party, or (d) was independently developed by the receiving party.
Systems X will use the same degree of care that it uses to protect the confidentiality of its confidential information of like kind (but not less than reasonable care) to (a) not use any confidential information of the Customer for any purpose outside the scope of this MSA; and (b) except as otherwise authorized by the Customer in writing, limit access to confidential information of the Customer to those of its and its Affiliates’ employees, advisors, contractors and third parties (collectively, “Representatives”) who need access for purposes consistent with this MSA and who have signed confidentiality agreements with Systems X containing protections, or have ethical duties to Systems X, not materially less protective of the confidential information than those herein. Each party shall be and remain fully liable and responsible for its Representatives’ unauthorized disclosure or use of the other party’s confidential information. Each party may confidentially disclose the terms of this MSA to any actual or potential financing source or acquirer. Notwithstanding the foregoing, Systems X may disclose the terms of these services terms and any applicable work order to a subcontractor or third party provider to the extent necessary to perform Systems X 's obligations to the Customer under this MSA, under terms of confidentiality materially as protective as those set forth herein.
6.3. Compelled Disclosure
Systems X may disclose confidential information of the Customer to the extent compelled by law to do so, provided Systems X gives the Customer prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance at the Customer's cost if the Customer wishes to contest the disclosure or limit the extent of the disclosure through a protective order or other legal measures. If Systems X is compelled by law to disclose the Customer's confidential information as part of a civil proceeding to which the Customer is a party, and the Customer is not contesting the disclosure, the Customer will reimburse Systems X for its reasonable cost of compiling and providing secure access to that confidential information.
6.4. Internal Record-Keeping; Retention
Notwithstanding anything to the contrary contained in this MSA, Systems X will (a) be entitled to retain copies of the disclosing party’s confidential information for internal record-keeping purposes and compliance with applicable regulations and industry standards or to defend or maintain litigation; and (b) not be obligated to erase confidential information that is contained in its archived data storage.
6.5. Data Privacy and Security
The Customer and Systems X acknowledge that the performance of the IT services may require Systems X to access, process, store, maintain, transfer, and otherwise interact with “Personal Information”. Systems X agrees that all such Personal Information in the Customer’s possession, custody, or control shall, between Systems X and the Customer, belong solely to the Customer, and Systems X shall obtain no rights in or to such Personal Information by way of its performance of the IT services. Systems X agrees that it will implement and maintain commercially reasonable technical and organizational measures designed to meet its and the Customer’s requirements under applicable data protection laws and to reasonably protect any data, personal information, or confidential information against loss, alteration, and any unauthorized disclosure, or access. Such measures, for the avoidance of doubt, will also include those reasonably designed to perform and meet its performance obligations under this MSA.
Systems X will, throughout the term, maintain a legally compliant written security policy that will describe policies and procedures for the protection of Personal Information in its possession, custody, or control from unauthorized access, alteration, exfiltration, or deletion and otherwise comply with applicable law. Systems X will, by way of its security policy, implement and enforce policies and procedures that protect and secure any Personal Information provided bythe Customer to Systems X through the course of the provision of the IT services. Systems X will make a copy of its security policy available to the Customer upon request. The Customer may also audit Systems X’s compliance with its security policy upon thirty (30) days’ notice no more than once per calendar year. Systems X will limit access to the Customer Personal Information to Systems X personnel who require such access and solely to the extent required in order to fulfill obligations under this MSA to the Customer. The Customer will, at all times, have control over access and use of the Customer’s systems, software, hardware, and data, including overriding Systems X’s decisions respecting access and use rights to the same.
Systems X shall not, and has no intention to, retain, collect, use, distribute, sell, disclose or otherwise process any Personal Information or other information disclosed by (or by others or through others in the course of the engagement) for any purpose except as expressly required and permitted for performing the IT services and within the direct business relationship between the parties, and in no event shall Systems X process, sell, rent, release, disclose, disseminate, make available, transfer, transmit or otherwise communicate Personal Information to any third party for monetary or other valuable consideration. Systems X will assist the Customer in responding timely (and within the time frame required by CCPA and/or other applicable law) to a client of the Customer or other user’s request to exercise their rights under the CCPA and/or other applicable law including deleting Personal Information from Systems X’s records if directed to do so by the Customer or the owner of the applicable data, subject to exclusions under the CCPA and/or other applicable law. Systems X understands its obligations under applicable privacy law, including but not limited to the CCPA, and will abide by those obligations. Systems X may not disclose Personal Information to any third party, except with express permission of the applicable individual and the Customer, and then only if Systems X agrees in writing to process the Personal Information in accordance with this paragraph and this MSA. In order to assure continued compliance with applicable law, and to acknowledge the dynamic nature of data protection law, Systems X agrees to cooperate in doing such acts and executing such further documents as may be necessary to maintain compliance with such laws.
6.5. Security Breaches
The term “Security Breach” as used herein shall mean any suspected or actual (i) unauthorized processing of Personal Information (such as loss or unauthorized use, accidental or unlawful destruction, alteration, disclosure, or acquisition of or access to such information) that compromises the security, confidentiality, or integrity of Personal Information or there is a reasonable suspicion that Personal Information may have been so compromised by any means, including by data breach or resulting in data loss, and for which review of applicable laws may be desired by the Customer or required in order to comply with applicable laws or (ii) unauthorized use of, disclosure of, or access to Customers systems or Customer’s data, (iii) physical intrusion of the Customer’s facilities, or (iv) theft, misappropriation or loss of documents, Personal Information, or storage media. Upon the occurrence of any actual or suspected security breach involving Customer data, Systems X will (a) provide prompt notice of the security breach to authorized Customer personnel as documented in the MSP and any other Customer personnel as identified or directed by the Customer; (b) reasonably cooperate with any investigation relating to the security breach that is carried out by, or on behalf of, the Customer or regulators, in order to investigate, prevent the recurrence of, mitigate and rectify such security breach, and (c) implement new security measures and remedies as mutually deemed necessary. Systems X will immediately take action to mitigate such a security breach. Systems X will document actions taken in response to a security breach in sufficient detail to meet reasonable expectations of forensic admissibility as well as standard industry requirements or as otherwise reasonably requested in writing, and will provide such to the Customer upon request.
Unless Systems X is otherwise required under applicable laws to notify certain individuals, the Customer in its sole discretion will determine whether and when to notify any individuals or entities (including governmental authorities/regulators) regarding any security breach. Unless otherwise agreed by the parties in writing, the Customer will have final editorial control over the content of any filings, communications, notices, press releases, or reports (“Communications”) related to a security breach involving Customer data, provided, however, the Customer will work with Systems X before referencing or mentioning Systems X in such communications. Upon the occurrence of a security breach involving Customer data, Systems X will use its best efforts to work with the Customer to determine the remediation methods and corrective actions to be taken, and Systems X agrees to provide the Customer with reasonable cooperation to fulfill any other of its express obligations set forth in this MSA.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS
7.1. Service Warranty
(a) Systems X warrants that the services shall be professionally performed by qualified personnel knowledgeable and skilled in the field, consistent with industry standards, and in accordance with the MSP. (b) Systems X warrants it shall have in place physical, human, technical, and administrative resources reasonably designed to perform its obligations and meet its targets under this MSA. (c) Systems X and its employees and its contractors will comply with all applicable laws, including but not limited to all laws related to privacy and data security. Systems X will ensure that its vendors and subcontractors who have access to Customer Data are at all times in compliance with this MSA. (d) Except as expressly stated in this MSA, IT services furnished under this MSA are provided "as is" and, unless otherwise expressly stated in this instrument or the Systems X MSP, without representations or warranties of any kind, either express or implied. To the fullest extent permitted by law, Systems X disclaims all warranties, express, implied, or statutory, including, but not limited to, implied warranties of title, non-infringement, merchantability, and fitness for a particular purpose. Systems X does not warrant that use of software or products furnished by Systems X will be uninterrupted, error-free, or secure, or that products or the server(s) to which access is provided are free of viruses or other harmful components.
The Customer acknowledges that Systems X relies upon information (including data, records, specifications, descriptions, and documentation) provided by the Customer. As a result, the accuracy and results of any services and provision are dependent upon the timeliness, accuracy, and completeness of the information furnished to Systems X by the Customer and the Customer’s employees, agents, and contractors. Systems X's obligations to provide the services are expressly conditioned upon the Customer’s cooperation and timely: (a) performance of tasks, responsibilities, and reviews under the MSP and or work order (including any project plans developed thereunder); (b) provision of approvals and information (including data, records, specifications, descriptions, and documentation) under the MSP and or work order; and (c) access to Customer’s personnel, resources, facilities and systems reasonably required for Systems X to perform the services as well as Customer meeting any responsibilities outlined in this MSA (collectively, “Customer responsibilities”). Any delays due to the Customer’s failure to satisfy or comply with the Customer's responsibilities may result in delays in providing the services (including work order deliverables) and additional fees. The Customer shall be responsible for the content of all material, information, data, records, specifications, descriptions, and documentation provided by the Customer to Systems X (collectively, the “Customer Data”). The Customer shall not provide to Systems X any material, information, data, records, specifications, descriptions, and documentation that infringes, misappropriates, or violates the intellectual property rights or privacy rights of any third party or is otherwise unlawful.
EXCEPT FOR ANY WARRANTIES EXPRESSLY CONTAINED IN THIS MSA, ALL SERVICES AND WORK PRODUCTS PROVIDED BY SYSTEMS X HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SYSTEMS X SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SYSTEMS X DOES NOT WARRANT THAT THE SERVICES, WORK PRODUCT, AND ANY DELIVERABLE WILL BE ERROR-FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO THE CUSTOMER IN CONNECTION WITH THE PROVISION OF ANY SERVICES, WORK PRODUCTS, AND DELIVERABLES. SYSTEMS X SHALL NOT BE RESPONSIBLE FOR LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ALL OF SYSTEMS X’S WARRANTIES ARE SOLE TO AND FOR THE BENEFIT OF THE CUSTOMER AND FOR NO OTHER ENTITY OR THIRD PARTY.
8. MUTUAL INDEMNIFICATION
8.1. Indemnification by Systems X
Systems X shall defend and hold the Customer, its officers, directors, employees and contractors harmless against any third party claims, demands, suits, or proceedings (“claims”) against the Customer arising out of or relating to (A) personal injury (including death) to any persons or damage to any tangible personal property (excluding any Customer data) arising out of any negligent act, error, or omission of Systems X and Systems X's employees, agents, or contractors; or (B) any work product infringing a copyright, a U.S. patent issued as of the effective date, or a trademark of a third party, and shall pay all costs and damages finally awarded against the Customer by a court of competent jurisdiction as a result of any such claim and shall pay all fees and damages finally awarded against the Customer by a court of competent jurisdiction as a result of any such claim; provided, however, that the Customer: (i) promptly gives written notice of the claim to Systems X; (ii) gives Systems X sole control of the defense and settlement of the claim (provided that Systems X may not settle any claim or enter into any order or stipulated judgment that purports to bind the Customer unless it unconditionally releases the Customer of all liability); and (iii) provides to Systems X, at Systems X's cost, all reasonable assistance. If (a) the Customer is enjoined from using the work product; or (b) the work product becomes, or Systems X believes the work product will likely become, the subject of an infringement claim, Systems X shall have the right, in its sole discretion, to (i) obtain for the Customer the right to continue the use of the affected work product; or (ii) replace or modify the affected work product so that it is no longer infringing. Suppose in Systems X's sole reasonable discretion, neither of the foregoing options is reasonably available to or commercially feasible for Systems X. In that case, Systems X will request that the Customer return and no longer use the affected work product and, upon the Customer’s compliance with such request, Systems X's sole liability will be to refund the fees paid by the Customer for the affected services and work product. Systems X's foregoing indemnification obligation shall not apply to any claim based on or caused by (v) any design specifications, requirements, documentation, materials, instructions, and directions prepared by the Customer and provided to Systems X under these services terms or any work order; (w) any work product or services being modified by any party other than Systems X, but solely to the extent the alleged infringement is caused by such modification; (x) any work product or services being combined with other non-Systems X products, services, and processes not authorized by Systems X in writing but solely to the extent the alleged infringement is caused by such combination; (y) any unauthorized use of any work product or services; (z) any third party deliverables or components not provided by Systems X that are contained within any work product or services; or Systems X's use of any Customer Data per this MSA.
THIS SECTION 8.1 SETS FORTH SYSTEMS X'S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY CONCERNING ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
8.2. Indemnification by Customer
The Customer shall defend and hold Systems X, its officers, directors, employees, and contractors harmless from any claims against Systems X alleging that any Customer data infringes the rights of, or has caused harm to a third party, or violates any law, and shall pay all costs and damages finally awarded against Systems X by a court of competent jurisdiction as a result of any such claim; provided, however, that Systems X: (a) promptly gives written notice of the claim to the Customer; (b) gives the Customer sole control of the defense and settlement of the claim (provided that the Customer may not settle any claim or enter into any order or stipulated judgment that purports to bind Systems X unless it unconditionally releases Systems X of all liability), and (c) provides to the Customer, at the Customer’s cost, all reasonable assistance.
9. LIMITATION OF LIABILITY
9.1. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO: (A) A PARTY’S INDEMNIFICATION OBLIGATIONS; (B) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (C) CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS MSA, IN NO EVENT SHALL (I) EITHER PARTY OR ITS SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, OR FOR ANY LOSS OF BUSINESS, REVENUE, ANTICIPATED SAVINGS, PROFITS, USE, AND/OR LOSS OR CORRUPTION OF ANY DATA AND/OR COST OF DATA RECONSTRUCTION OR PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS, SERVICES, INVENTORY OR EQUIPMENT, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LIABILITY, FOR ANY CLAIM ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS MSA, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES; AND (II) EITHER PARTY’S ENTIRE AND MAXIMUM LIABILITY FOR ALL CLAIMS IN ANY MANNER RELATED TO THESE SERVICES TERMS AND/OR THE APPLICABLE WORK ORDER, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID TO SYSTEMS X BY THE CUSTOMER UNDER THE WORK ORDER WHICH GAVE RISE TO THE CLAIM FOR DAMAGES. THE FOREGOING LIMITATION OF LIABILITY IS CUMULATIVE FOR ALL CLAIMS IN ANY MATTER RELATED TO THIS MSA AND IS NOT PER INCIDENT.
9.2. Commencement of Actions; Mitigation of Damages.
No party may commence any action under this MSA terms or a work order more than one (1) year after the breach or event giving rise to the claim for damages and indemnification. The claiming party shall use commercially reasonable efforts to mitigate and avoid any damages.
10. TERM; TERMINATION
(a) The Customer shall have the right to terminate thisMSA or any work order in the event that Systems X fails to meet the required performance standard established by this MSA; provided, however, that the Customer shall not terminate this MSA pursuant to this provision without first giving Systems X written notice of deficiencies in performance and a reasonable opportunity (not less than forty-five (45) days) to meet and maintain the required performance standard. In the case of the second and multiple breaches in a twelve (12) month period, the cure period shall be reduced to thirty (30) business days. The Customer shall be entitled to a refund of all pre-paid fees for the services paid for but not provided by Systems X beyond the effective date of termination. If prior to the expiration of the term, (i) the Customer terminates this MSA or any work order before the completion of all services purchased hereunder and such termination is not due to Systems X's uncured breach; or (ii) Systems X terminates this MSA or any work order due to the Customer’s uncured breach (collectively, a “Customer early termination”) and the Customer has not already paid in advance the full amount of all fees due under this MSA and or each work order for the services purchased in accordance with the terms herein, the Customer shall pay Systems X an early termination charge equal to all fees, including all applicable Taxes, outlined in each work order which would otherwise be due through the end of the entire term of the MSA and or such work order (the “early termination fee”). The parties agree that the actual damages resulting from a Customer's early termination are difficult to ascertain, and the early termination fee is a reasonable estimate of anticipated actual damages and not a penalty. The Customer agrees and acknowledges that the early termination fee shall apply even if the Customer terminates this MSA and or any work order prior to Systems X commencing performance of any services under this MSA. The early termination fee shall be due and payable within ten (10) days of the effective date of termination, and any prepaid fees will be applied towards the amount of the early termination fee.
(b) Systems X shall have the right to terminate this MSA or any work order (i) upon thirty (30) days prior to written notice to the Customer of a material breach if such breach remains uncured at the expiration of such notice period; or (ii) immediately in the event the Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this MSA is terminated, these services terms and all work orders are simultaneously terminated. Notwithstanding any terms to the contrary in this MSA, if any amounts owed by the Customer (except for any disputed fees then in dispute under Section 4.6) are not fully paid when due following Section 10.3 herein, the Customer shall be in material breach of this MSA and, in addition to its other rights and remedies at law or in equity, Systems X may terminate this MSA and cease providing all services, effective immediately upon delivery of the written notice to the Customer.
With respect to breaches of the MSA not involving failure to pay and that are not willful, intentional, or malicious, Systems X shall not exercise its right to terminate so long as the Customer implements prompt, continuous, and diligent efforts to stop the breach and prevent its reoccurrence.
10.2. Work Orders
Unless otherwise provided in a work order, the term of each work order shall expire on the earlier of (a) the date of expiration of such work order or cessation of such services, as specified therein; or (b) Systems X's completion of the services described therein (the “term”).
10.3. Applicability of these Services Terms
The term of these services commences as of the date these services terms are accepted by the Customer under the terms herein and shall remain in effect and apply to each work order executed by the parties until all work orders have expired or been terminated hereunder.
10.4. Obligations on Termination
Upon any termination or expiration of this MSA, each party shall return or destroy all copies of any Confidential Information of the other, as certified by an authorized representative of the returning party. Systems X will provide transition services at its normal rates so as to assure business continuity, such services including but not limited to assisting in transitioning smoothly to a new provider.
11. MODIFICATIONS AND AMENDMENTS TO SERVICES TERMS
11.1. Modifications and Amendments.
Systems X may, at any time and in its sole discretion, amend these services terms, if any such amendment(s) does not adversely and materially affect the quality of services provided by Systems X to the Customer or change the rates quoted in the MSP or any work order. The revised MSA Terms will become effective to the Customer the earlier of (a) the first day after the Customer and Systems X sign a new work order that incorporates the revised version of the terms of the services by reference; or (b) thirty (30) days following Systems X's written notice to the Customer that a revised version of the terms of the services has been posted at https://www.systems-x.com/en-us/msmsa.
11.2. Customer’s Rights.
If the Customers compliance with the revised or amended version of the terms of the services would materially or adversely affect the Customer use of the services or any work product provided under a work order and the Customer gives written notice of its objection to the terms of the revised services no later than ten (10) business days following the date that the terms of the revised services would otherwise have become effective as to Customer, Systems X will not enforce the revision(s) to such services terms as to the Customer until thirty (30) days following the date the revision(s) would otherwise have become effective as to the Customer and the Customer will continue to be subject to the prior version of the terms of the services. During the thirty (30) day period, the Customer may elect to terminate the work order on these grounds by giving written notice to Systems X, which must be received by Systems X during such thirty (30) day period, or such termination right shall be deemed to be waived by the Customer. Systems X will not charge the Customer an early termination fee for a termination on these grounds. Suppose the Customer does not elect to terminate the work order during the thirty (30) day period. In that case, the revised version of the terms of the services will become effective to the Customer and apply to the MSA and the work order (and all other work orders) as of the end of the thirty (30) day period. If the Customer elects to terminate the work order in accordance with the terms of this Section 11.2, Systems X, in its sole discretion, may elect to waive the application of the terms of the revised services as to the Customer and continue to apply, for the remainder of the term of the work order, the version of the terms of the services that was in effect prior to the date that the revised version of the terms of the services was posted at https://www.systems-x.com/en-us/msmsa.
12. GENERAL PROVISIONS
12.1. Export Compliance
The services and other technology Systems X makes available, and derivatives thereof may be subject to e United States and other jurisdictions’ export laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. The Customer shall not permit Users to access or use any of the services in a U.S. embargoed country or violate any U.S. export law or regulation.
12.2. Employee Solicitation
The Customer agrees that during the term of this MSA and for a period of two (2) years following the termination of this MSA, the Customer will not recruit or hire any employee, agent, representative, or subcontractor of Systems X, nor will the Customer directly or indirectly contact or communicate with Systems X Personnel to solicit or induce such Systems X Personnel (a) to accept employment with or perform work for any person, firm, or entity other than Systems X; or (b) to provide services to the Customer or any other person, firm or entity except as an employee or representative of Systems X. The Customer agrees that, in the event of a breach or threatened breach of this provision, in addition to any remedies at law, Systems X, without posting any bond, shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy that may then be available.
All provisions survive termination or expiration of this MSA except those requiring performance only during the term of this MSA and work order, as applicable.
12.4. No Third-Party Beneficiaries
This MSA does not create any right enforceable by any person or entity that is not a party hereto.
12.5. Entire Agreement; Order of Precedence
This MSA is the entire agreement between the Customer and Systems X regarding the services. It supersedes and merges all prior and contemporaneous, written or oral, agreements, understandings, proposals, marketing materials, and representations concerning its subject matter and the services. There are no representations, understandings, or agreements that are not fully expressed. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this MSA will be effective unless outlined in writing and signed by the party against whom the modification, amendment, or waiver is asserted. The parties agree that any term or condition stated in the Customer’s purchase order or any Customer’s other order documentation (excluding work order) is void. Headings contained in this MSA are inserted for convenience of reference only and shall not in any way define or affect the meaning or interpretation of any provision of this MSA. Terms for which meanings are described in this MSA shall apply equally to the singular and plural forms of the terms defined. Unless otherwise indicated, the word “including” shall mean “including, without limitation” or words of similar effect. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (a) these MSA Terms; and (b) the applicable work order (unless and to the extent expressly stated therein that a specified term therein shall take priority over an analogous or conflicting term in these MSA terms).
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this MSA in its entirety (together with all work orders), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets provided that the assignee agrees in writing to be bound by all the terms of this MSA (including all work orders) and, in the case of an assignment by the Customer, all past due fees (except for any disputed fees then subject to a billing dispute under Section 4.6) are paid in full. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this MSA upon written notice. In the event of such termination, Systems X will refund to the Customer any prepaid fees for the services allocable to the remainder of the term for the period after the effective date of such termination. Subject to the foregoing, this MSA will bind and inure to the parties’ benefit, their respective successors, and permitted assigns.
12.7. Relationship of the Parties
The parties are independent contractors. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries under this MSA.
12.8. Force Majeure
Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, pandemics, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party’s employees or contractors), service disruptions affecting hardware, software or power systems, not within such party’s possession or reasonable control, and denial of service attacks.
No failure or delay by either party in exercising any right under this MSA will constitute a waiver of that right or any other right. Any waiver of any right or remedy under this MSA must be in writing and signed by each party. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion. Except as otherwise expressly stated in this MSA, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.10. Governing Law; Venue
This MSA and any claim, controversy, right, obligation, or dispute arising under or related to this MSA (including any work order), the relationship of the parties, and the interpretation and enforcement of the rights, performance obligations, and duties of the parties shall be governed by and construed in accordance with the laws of the State of Michigan, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on contracts for the international sale of goods do not apply to this MSA. The parties irrevocably consent to the state courts’ exclusive jurisdiction and venue in Macomb County, Michigan, or federal courts in the Eastern District of Michigan, U.S. The parties waive any right to a jury trial in connection with any action or litigation in any way arising out of or related to this MSA.
Unless otherwise provided in this MSA, all notices (except for routine business communications, e.g., scheduling of meetings or calls; requests for information; status reports, etc.) shall be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. Notices to Systems X shall be addressed to the Director of Client Services, with a copy to the Legal Department, and sent to Systems X Corporation, 50801 East Russell Schmidt Blvd., Chesterfield, Michigan 48051. Except as otherwise specified, notices to the Customer shall be addressed to the Customer’s signatory to the MSP and sent to the Customer’s principal place of business.
Suppose any provision of the MSA is held by a court of competent jurisdiction contrary to law. In that case, the provision will be deemed null and void, and the remaining provisions of this MSA will remain in effect.
Systems X may use the services of subcontractors for the performance or provision of any services or work product under the MSP and any work order, provided that Systems X remains responsible for the (a) compliance by any such subcontractor with the terms of this MSA; and (b) the overall performance of the services.
12.14. Counterparts; Electronic Signatures
The MSP and any work order may be executed and delivered in counterparts by facsimile, emailed PDF, or electronic signature through a service provider designated by Systems X, each of which will be deemed an original and all of which together will constitute the same instrument and, notwithstanding the date of execution, shall be considered to be effective as of the effective date (unless such document expressly provides otherwise).
No action, regardless of form (including in contract, tort, or otherwise), arising in connection with the performance of this MSA may be brought by either party more than one (1) year after the date of the occurrence on which the action is based.
12.16. Good Faith
The parties hereto expressly assume an obligation to act in good faith toward one another in the performance of their obligations under this MSA.