Terms and Conditions: Master Service Agreement
Proprietary & Confidential Information
The enclosed materials are propriety to CoreRecon, LLC (“CoreRecon”). CoreRecon reserves all rights, titles, and interest in and to such materials. The terms, conditions, and information set forth herein are confidential to CoreRecon, and may not be disclosed in any manner to any person other than the addressee, together with its officers, employees, and agents who are directly responsible for evaluating the contents of these materials for the limited purpose intended. These materials may not be used in any manner other than for such limited purpose. Any unauthorized disclosure, use, reproduction, or transmission is expressly prohibited without the prior written consent of CoreRecon.
I. INTRODUCTION, DEFINITIONS, AND GENERAL PROVISIONS
1.1. Parties. This Contract is by and between CoreRecon, LLC (“CoreRecon” or “Provider”) and “Client”, (“Customer”) with its principal place of business located at “Client business location, state, zip and county”. Collectively, CoreRecon and “Client”, shall be referred to as “the Parties.”
1.2. Purpose. The purpose of this Master Service Agreement (MSA) is to provide the foundation on which the Parties will operate, unless specifically modified by a Scope of Work Agreement or Purchase Order or Agreement. If any provision of this MSA is modified by a Scope of Work Agreement or Purchase Order or Agreement, such modification shall apply only to that undertaking. Modifications of this MSA at large shall be in writing and agreed to and acknowledged by the Parties.
1.3. Venue. The Parties hereby agree and acknowledge that, notwithstanding other venue provisions, statutes, or rules, venue for any dispute is appropriate and correct in Nueces County, Texas, as a majority of the services provided under this contract are carried out in Nueces County, Texas. The Parties further acknowledge that the Contract was executed in Nueces County, Texas. The Parties further agree that Harris County is not an inconvenient forum for either party.
1.4. Choice of Law Provision. This Master Service Agreement, each provision herein, the acts to be performed under this Agreement, and all disputes arising from or under this Agreement, the acts to be performed therein, or subsequent undertakings are governed by the laws of the State of Texas.
1.5. Severability. In the event a clause or portion of this contract is deemed illegal, invalid, or otherwise unenforceable, the enforceability of the remaining provisions shall not, in any way, be affected or impaired thereby.
1.6. Merger. This MSA contains and memorializes the entire agreement between the Parties to this MSA, subject to subsequent Scope of Work Agreements or Purchase Orders or Agreements. The Parties are entering into this MSA based solely on the representations herein and are not relying on any representation, assertion, guarantee, promise, or other assurance by either party, or their agents.
1.7. Right of First Refusal. CoreRecon has the right of first refusal for all IT projects undertaken by or on behalf of Customer. Customer shall notify CoreRecon prior to requesting bids for any programming, applications, hardware upgrades, including phone systems, or data systems. CoreRecon shall review the plans or requests for compatibility, ease of transition, and usability – CoreRecon shall provide an opinion on each function to Customer in a timely fashion and, where applicable, begin work in a timely fashion. The purpose of this provision is to ensure smooth installation and transition of goods or services on behalf of Customer necessary to minimize downtime.
1.8.1. “Computer System” shall mean the computer hardware, identified by model and serial numbers, and the computer software listed herein.
1.8.2. “Services” shall mean the Operation, Maintenance, and Management of the Computer System, specifically defined in Description of Services.
1.8.3. “Goods” includes all hardware or software, including network cable, necessary to perform under a particular scope of work or undertaking on Customer’s behalf. Such goods may include, but are not limited to: Computer systems, phone systems, software such as Microsoft Office or other commercially available software, network cable, monitors, printers, scanners, and other such goods utilized in an IT context.
1.8.4. “Information Technology” or “IT” refers to the use of computers and other hardware or software to store, retrieve, transmit, and manipulate data or information. Such definition shall include peripheral devices such as printers, monitors, mice, keyboards, scanners, or other such hardware which Customer may utilize in its day-to-day transmission, storage, or manipulation of date.
1.8.5. “Operation” shall mean the operation of the Computer System, including, but not limited to, manipulation and computation of data by the Computer System, the outputting of such manipulated and computed data by the Computer System, and communication between elements of the Computer System.
1.8.6. “Maintenance” shall mean remedial maintenance and preventative maintenance of the Computer System.
1.8.7. “Management” shall mean the scheduling of the use of the Computer System, procurement of supplies and spare parts thereof, and recommendation of changes and additions thereto.
1.8.8. “Phone System” shall include the physical phone as well as the technology and programs deployed to utilize the hardware, such as VoIP or traditional landline.
1.8.9. “Up-Time” shall mean total time, during any calendar week, that the Computer System is available for Operation during the time scheduled for Operation, divided by the total time scheduled for Operation during such calendar week.
1.9. Force Majeure. In any case where either party hereto is required to do any act, delays caused by or resulting from Acts of God, war, civil commotion, fire, flood or other casualty, labor difficulties, shortages of labor, materials or equipment, government regulations, unusually severe weather, or other causes beyond such party’s reasonable control shall not be counted in determining the time during which work shall be completed, whether such time be designated by a fixed date, a fixed time or a reasonable time, and such time shall be deemed to be extended by the period of such delay.
1.10. Non-Disclosure Agreement. The Parties shall refrain from the disclosure of personal, confidential, or otherwise protected information learned during the term of this MSA and each subsequent undertaking. Personal, confidential, or otherwise protected information shall include but is not limited to: Personnel information, including names, addresses, social security numbers, or other such personal information, customer lists, pricing and costs of services, trade secrets, as well as any applicable copyrights, trademarks, patents, or other federally protected intellectual property, research and develop information, or other such information that either party may reasonably suspect is intended to be confidential or personal.
1.11. Location of Services. Unless otherwise agreed to, the services shall be provided or performed at Customer’s normal place of business. However, such requirement does not preclude Provider from offering remote services where practicable.
1.12. Notice and Communication. The Parties are required to provide notice to each other in writing. Such writing may be through email, fax, or U.S. mail, so long as the notice is sent to the designated agent or point of contact of each party. Unless otherwise stated, Customer shall send notice to John Martinez of CoreRecon.
“Client” shall provide notice to CoreRecon within 72 hours of the signing of this MSA of all acceptable parties to whom notice may be sent.
II. DESCRIPTION OF SERVICES
2.1. Services Provided. Following the signing of this Master Service Agreement by both parties, CoreRecon will provide to Customer a “Scope of Work” agreement which shall outline the services to be provided, the terms of such service, including costs, timing of implementation, consideration provided to Customer, and all other specific information necessary for each service or engagement.
2.1.1. During the term of this contract, Provider shall provide and perform Services, which shall be subject to Customer’s written acceptance, and shall be performed by Provider’s employees, acceptable to the Customer, who are skilled in the Operation and Maintenance of the Computer System. Customer may, for any reason, request that such employee be replaced with other skilled employees of Provider.
2.1.2. The Computer System shall be available for Operation, during the term hereof, with an Up-Time of 80% (eighty percent), during the hours of 8:00 am through 5:00 pm, Monday through Friday, excluding holidays recognized in the city where Customer is located.
2.1.3. The preventative maintenance and, whenever possible, the remedial maintenance portions of the Maintenance shall be performed during the times that the Computer System is not scheduled for Operation. To the extent any Maintenance is required to be performed during the time that the Computer System is scheduled for Operation, Provider shall provide, at no additional cost to Customer, a back-up capability for that portion of the Computer System for which Maintenance is being performed.
2.1.4. During the term of this MSA, Customer shall provide to Provider with sufficient work space to perform Services.
2.2. Purchase Order or Agreement. If the undertaking requires the purchase, installation, or acquisition of goods, including hardware, computer systems, or other such goods, CoreRecon shall provide a purchase order or agreement to Customer prior to ordering or purchasing any goods on Customer’s behalf.
2.3. Service Level Agreement:
There are four different classifications for priority that an inbound ticket can be assigned. There are as follows:
· CRITICAL: Business Critical Service not functioning, and all users impacted.
· HIGH: Business Critical Service has significant degradation of functionality & a large number of users or business critical processes are impacted.
· MEDIUM: Limited degradation of service, limited number of users or functions affected, business process can continue.
· LOW: Small service degradation and does not affect business critical systems and often impacts only a single user.
Priority Response Time Resolution Time Escalation Threshold
CRITICAL Within 1 hour ASAP – BEST EFFORT 30 minutes
HIGH Within 2 hours ASAP – BEST EFFORT 2 Hours
MEDIUM Within 24 hours Not Defined 4 Hours
LOW Within 48 hours Not Defined 8 Hours
2.4. Technical Response Time: Is defined as the maximum amount of time it will take for a technician to start working on a problem and contact the client. This also pertains if technician is on-site as well.
2.5. Escalation Threshold: Is defined as the maximum amount of time it will take for a technician to involve a more senior technician or if a third-party client vendor is involved. This also pertains if technician is on-site as well.
2.6. Term of Contract. The term for this contract shall be for one (1) year from the effective date of this agreement. However, this contract shall automatically renew for additional one-year periods, unless either party provides at least 60-days’ notice in writing that the contract will terminate without renewal. In the event this contract is renewed, the cost of services provided shall increase five percent (5%) from the previous years’ prices. Such increase shall be included in the first billing cycle following the renewal date.
3.1. Cost of Services. The cost of services shall be outlined in each scope of work agreement, purchase order or agreement, or service level agreement.
3.2. Time and Manner of Payment. For undertakings that include a month-to-month or other continuing service, payments by Customer shall be due on the first day of each month that services will be provided. If the first day of a month falls on a weekend, federal or state holiday, or any other day on which banks are regularly closed, payment will be due on the first business day following the first day of the month.
3.3. Certain Purchase Orders. If an undertaking requires or calls for the purchase of goods, including programs or applications, on Customer’s behalf, Customer will be responsible for full payment of the goods prior to CoreRecon ordering, purchasing, or acquiring the goods on Customer’s behalf. Such requirement does not apply to goods in sufficient supply in CoreRecon’s inventory.
4.1. Waiver of Warranties.
4.1.1. CoreRecon makes no guarantees or warranties, implied or explicit, other than those specifically identified above, to Customer or it’s agents, regarding the products or services provided under or pursuant to this Contract. Such implied warrants not provided include, but are not limited to, the implied warranty of merchantability, the implied use of fitness for a particular purpose, or other such warranties.
4.1.2. Such a waiver of warranties does not apply to any manufacturer’s warranties provided by the manufacturer, distributor, designer, or other party involved in the manufacturing, shipping, marketing, or installation of such goods.
4.1.3. Goods provided pursuant to this contract aRE provided AS IS.
4.1.4. Customer has read and hereby acknowledges the waiver of warranties provision of the Contract.
5.1. Agreement to Mediate. The Parties agree that prior to the commencement of any suit related to this contract or the services provided in accordance with this contract, the Parties will engage in good faith mediation. The Parties further agree that each party will provide all documents reasonably necessary to effectively mediating any disputes, including but not limited to: invoices reflecting costs or damages, reports, estimates for repair or replacement, and other documents reasonably necessary to effectively mediate. The cost for the meditator shall be equally borne by each Party. The Parties acknowledge that the purpose to mediating is to quickly and cost-effectively resolve disputes in an amicable manner.
5.2. Liquidated Damages. The parties agree that in the event of a breach of contract by either party, damages would be difficult to calculate. Accordingly, the parties agree that, unless caused by a circumstance described under section 1.9, or factual or legal impossibility, the parties will be entitled to damages under the following provisions.
5.2.1. CoreRecon, LLC: In the event that Customer breaches a contract or scope of work agreement, seeks early termination, refuses to pay, CoreRecon shall be entitled to 100% of the remaining contract value, determined by the actual amount that Customer would pay through the end of the contract. For example, if Customer would pay $1000 per month for twelve (12) months, and six (6) months remain to be paid under the contract, Customer would be responsible to pay CoreRecon 100% of the remaining months. If CoreRecon has performed all or substantially all tasks as set out in a scope of work agreement or provided all goods where applicable, Customer shall be responsible for 100% of the contract value plus any court costs or attorneys fees incurred in the collection thereof. For undertakings that involve buying hardware for Customer, Customer shall be responsible for 100% of the cost of goods purchased or ordered on there behalf at the time of ordering or purchasing.
5.2.2. Customer: In the event that CoreRecon fails to perform under this contract, Customer is limited to damages equivalent to the amount Customer spends on services in order to restore Customer to a state in which operations can continue. For example, if Customer must hire a third-party company to restore systems to an operating state and pays $1,500 for services, CoreRecon would owe $1,500. However, such amount shall be limited to a reasonable amount, considering market costs, actual damages that would be borne to Customer without repair, and amount of time CoreRecon would need in order to comply. Under no circumstances shall CoreRecon be responsible for the cost of replacement goods as liquidated damages. However, such amount shall be offset by the amount Customer would pay to CoreRecon without the breach or failure to perform.
5.2.3. Duty to Mitigate. Customer has a duty to mitigate its damages by acting in a reasonable and prudent manner. As such, Customer has a duty to seek from CoreRecon the services or products necessary to restore Customer’s system to an operating state. Customer shall further allow CoreRecon a reasonable amount of time to respond before seeking third-party services.
5.2.4. Notice. Prior to seeking damages, each party must provide reasonable notice to the other party of its intentions within thirty (30) days prior to seeking damages. After receiving such notice, if possible, the breaching party is permitted a reasonable time to restore itself to compliance under this contract. However, such time to restore shall not exceed thirty (30) days.
5.2.5. Deadline to pay. The parties agree that the amounts owed under this provision shall be due within forty-five (45) days after receiving notice of intent to collect from the other party, if such breaching party has not restored itself to compliance under the contract. Under no circumstances does this provision extend deadlines to perform under this contract.
5.3. Termination of MSA/Contract. Upon written notice only, either party may terminate this MSA subject to the provisions outlined above, including notice, damages, and the duties herein. Upon the termination of this MSA, CoreRecon shall be provided thirty (30) days to remove any of its equipment or inventory stored or that has been used that is on the Customer’s premises. Client terminates contract prior to the one-year service ending date, then remaining balances of months will be paid in full to CoreRecon with invoice provided to client by CoreRecon to ensure paper trail for filing.
5.4. Indemnity. Customer hereby agrees to indemnify and hold harmless CoreRecon, it’s agents, employees, and owners from any harm caused by CoreRecon, it’s agents, employees, and owners, including but not limited to any negligent act or omission by CoreRecon, it’s agents, employees, and owners.
5.5. Harassment. The Parties shall be responsible for the training and prevention of harassment, including sexual harassment, by its employees. The Parties shall take reasonable steps to prevent harassment by any employee. If an employee of either party believes he or she is being harassed by an employee of the other party, the complaining party shall notify the other party within 48 hours of such complaint being received. Upon receipt of such complaint, the receiving party shall promptly investigate and take responsible steps to eliminate future harassment, which may include termination of the harassing employee. Failure to take reasonable steps may result in the Party or its employee being responsible for damages related to the harassment.
5.6. Time is not of the Essence. The parties agree, that unless otherwise stated, time is not of the essence in each undertaking