Master Services Agreement

This Master Services Agreement (the “Agreement”) is entered into pursuant to a Proposal, as may be amended or modified from time to time (the “Proposal”) between Edge IT, LLC, a Washington limited liability company doing business as Edge Networks (the “Company”), and the customer identified in the Proposal (“Client”), and is dated effective as of the date the Proposal is signed by both Company and the Client.  The Company and Client may be individually referred to herein as a “Party” and collectively as the “Parties.” 

RECITALS

A.            Company is a provider of managed IT support services, managed IT security services, and cybersecurity services and solutions. 

B.             Company desires to provide, and Client desires the Company to provide, certain services to Client in accordance with the terms and conditions of this Agreement.

NOW THEREFORE, in consideration of the foregoing Recitals, the terms and conditions of the Proposal and this Agreement, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:

1.              Agreement. 

1.1           Term.  This Agreement shall commence on the Effective Date and shall continue in effect until terminated in accordance with Section 9.  In the event the term for the Company’s provision of Services specified in the Proposal is other than month to month, this Agreement shall renew for successive terms equal to that specified in the Proposal, unless either Party notifies the other Party of its intent to terminate this Agreement at least ninety (90) days prior to the expiration of the then-current term, in which case this Agreement shall terminate at the end of the then-current term. 

1.2           Provision of Services.  Company agrees to provide to Client the services detailed in the Proposal.  The services detailed in the Proposal, together with any additional services requested by Client and which Company agrees to provide, are collectively referred to herein as the “Services.”  Company may provide the Services through its employees, subcontractors, and vendors engaged by the Company, as determined by the Company in its sole discretion. 

1.3           Network and Locations Covered.  Company agrees to provide the Services with respect to Client’s information technology network (the “Network”), as detailed in the Proposal. 

1.4           Devices.  Company may furnish hardware, software, or other devices (each a “Device” and collectively the “Devices”) to Client in connection with Company’s provision of the Services, or Client may desire to add additional Devices to the Network.  In the event a Device is added to the Network, Company will provide Services with respect to the Device upon both Parties’ execution of an addendum to the Proposal detailing the additional Device or Devices. 

2.              Fees. 

 2.1           Service Fee.  Company will charge fees for the Services to Client as more particularly described in the Proposal (the “Service Fee”).  Fees for any Services in addition to those detailed in the Proposal, including but not limited to any maintenance provided outside of the Company’s normal business hours, shall be billed to Client in addition to the Service Fee in accordance with Company’s customary fee schedule, detailed at [insert web address], which may be modified from time to time (the “Fee Schedule”).  The Company will invoice Client on a prospective basis.  Client agrees to pay each invoice within fifteen (15) days of the date of the invoice.  Company reserves the right to modify the Service Fee upon thirty (30) days’ notice to Client, in which case the modified Service Fee or Fee Schedule shall apply thereafter. 

2.2           Expenses.  Client shall reimburse the Company for its expenses incurred in connection with performing the Services, including expenses associated with traveling to Client’s place(s) of business or traveling on behalf of Client (e.g., airfare, mileage, meal reimbursement, hotel, etc.), and expenses associated with Company’s purchase or provision of Devices to be added to Client’s Network. 

2.3           Taxes.  Client shall be responsible for paying in full all sales, use, business and occupation, or other taxes, levies, charges, customs, and fines arising in connection with the Company’s performance of the Services, without withholding, deduction, set-off, or otherwise, except income taxes owed by the Company.  Provided, if Client is required by law to make any withholding or deduction, Client shall increase the amount paid to the Company to the extent necessary to cause the amount receivable after such withholding or deduction to be equal to the amount that the Company would have received had no such withholding or deduction been made. 

2.4           Late Payments.  In the event Client fails to pay any amounts due to Company within fifteen (15) days of the date such payment is due, Company reserves the right to discontinue Services until such fees are paid.  Moreover, the Company may exercise any and all additional remedies at law with respect to unpaid amounts owed to the Company. 

3.              Provision of Services.

3.1           Services.  Company shall monitor, advise, and provide remote and/or on-site Services to Client during the Company’s normal business hours in accordance with this Agreement.  If Client requests Services be provided outside of the Company’s normal business hours, Company will provide the requested Services subject to the availability of Company representatives, and if provided, additional fees for such Services shall apply in accordance with Section 2.1. 

3.2           Access to Network.  Client shall provide Company and its representatives with full access, including secure remote access (e.g. VPN, Citrix/AccessIT, Telnet, SSH, RAS or other solution expressly approved by Company) to the Network in order to allow the Company to provide the Services.  Client acknowledges that the Company cannot perform the Services without access to Client’s Network. 

4.              Client Obligations. 

4.1           Client will contact Company regarding the Services by using the Help Desk Contact Information detailed in the Proposal.  Prior to contacting the Company, Client agrees to compile all necessary information listed in the Proposal.

4.2           Client shall promptly notify the Company of any events or incidents that could impact the Company’s ability to provide the Services.

4.3           Client agrees to inform the Company of any modification, installation, or service performed on the Network by any person who is not employed by or acting on behalf of the Company.  In no event shall the Company be responsible or liable for loss of use of the Network or for any other liabilities arising out of or resulting from alterations, additions, adjustments or repairs which have been made to the Network by anyone other than an authorized representative of the Company, and Client agrees to defend, indemnify, and hold Company harmless from any such liability. 

4.4           In connection with the provision of Services, Client shall make available to Company representatives adequate workspace, heat, light, ventilation, electric current and outlets, internet, remote access, and long-distance telephone access at Client’s place(s) of business.

4.5           Periodic reboots of Network devices such as firewalls, routers, and servers may be required in connection with the Services.  Client agrees to cooperate with Company representatives in the scheduling of such reboots and agrees to make the Network available, remotely or on-site as required, at the scheduled times. 

4.6           Client will designate a managerial level representative to authorize all Services to the Network (the “Client Representative”).  Whenever possible, the Client Representative shall be present when a Company representative is at Client’s location(s).  The name and contact information for the Client Representative is outlined in the Proposal, and Client agrees to inform Company of any changes made to the Client Representative within thirty (30) days of such change. 

5.              Service Limitations.

5.1           Unless otherwise specified in the Proposal, consumables, replacement parts, hardware, software, and server, network, or software upgrades and associated services, as well as manufacturer warranty parts and labor or services, are outside the scope of the services detailed in the Proposal.  Costs for any such goods or Services the Company agrees to provide shall be billed to Client in addition to the Service Fee in accordance with Section 2.1.  In the event such costs are not reflected on the Fee Schedule, the Company shall furnish a schedule of such costs to the Client prior to causing the Client to incur any such costs. 

 5.2           Company shall not be liable for any errors, delays, or problems with the Network due to external causes beyond Company’s control including, but not limited to, terrorist acts, natural catastrophe, fire, flood, or other act of God, and/or power failure, virus propagation, or improper shutdown of the Network.

6.              Indemnification and Limitation of Liability.

6.1           Indemnification.  Client agrees to protect, defend, hold harmless, and indemnify the Company and its members, managers, officers, directors, employees, agents, contractors, and representatives from and against any and all liability, claims, demands, losses, damages, or costs or expenses, including but not limited to attorneys’ fees, arising out of or resulting from any breach of Client’s obligations under this Agreement. 

6.2           Limitation of Liability.  Company’s maximum liability to Client in connection with the Services and this Agreement shall be limited as set forth herein. 

(a)            In the event the Services detailed in the Proposal are to be provided on a month-to-month basis, Company’s maximum liability to Client in connection with the Services and this Agreement shall be limited to the aggregate amounts received by the Company pursuant to this Agreement during the immediately preceding month prior to accrual of the liability; 

(b)           In the event the Services detailed in the Proposal are to be provided for a term that is not month-to-month, Company’s maximum liability to Client in connection with the Services and this Agreement shall be limited to aggregate amounts received by the Company during such longer term.  PROVIDED, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY’S AGGREGATE LIABILITY TO CLIENT FOR ANY OTHER CLAIMS ARISING OUT OF THE SERVICES AND THIS AGREEMENT SHALL BE LIMITED IN EVERY CASE TO THE AGGREGATE AMOUNTS RECEIVED BY COMPANY HEREUNDER DURING THE SIX-MONTH PERIOD PRECEDING THE ACCRUAL OF ANY LIABILITY OF COMPANY TO CLIENT. 

6.3           EXCEPT AS SPECIFICALLY SET FORTH HEREIN, IN NO EVENT SHALL THE COMPANY BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY CLAIM FOR LOST PROFITS, LOST BUSINESS, OR LOST BUSINESS OPPORTUNITITES ARISING OUT OF THE SERVICES OR ANY TERM OF THIS AGREEMENT, EVEN IF CLIENT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF PURPOSE OF ANY LIMITED REMEDY.

7.              Disclaimer of Warranties.  EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE COMPANY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  ANY DEVICES PROVIDED BY THE COMPANY TO CLIENT ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.”  COMPANY DOES NOT WARRANT THAT ANY DEVICE WILL BE ERROR-FREE OR THAT ACCESS TO ANY DEVICE WILL BE UNINTERRUPTED.  THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS, AND INACCURACIES OF OR WITH RESPECT TO THE DEVICES DURING CLIENT’S USE OF SUCH DEVICES.  COMPANY DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY DEVICE, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.  COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR ENDORSE THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF ANY INFORMATION OR STATEMENT WHICH IS DISPLAYED, UPLOADED, OR DISTRIBUTED BY OR IN CONNECTION WITH ANY DEVICE.  THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE DEVICES IS WITH CLIENT.  COMPANY RESERVES THE RIGHT TO CORRECT ANY ERRORS OR OMISSIONS IN ANY DEVICE AND CONDUCT REGULAR MAINTENANCE WITH RESPECT TO ANY DEVICE, WHICH MAY RESULT IN CLIENT’S TEMPORARY INABILITY TO ACCESS OR UTILIZE SUCH DEVICE.  ALTHOUGH COMPANY INTENDS TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES, WORMS, “TROJAN HORSES” OR OTHER DESTRUCTIVE MATERIALS INTO THE DEVICES, COMPANY DOES NOT GUARANTEE OR WARRANT THAT THE DEVICES DO NOT CONTAIN SUCH DESTRUCTIVE FEATURES.  COMPANY IS NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO SUCH FEATURES, AND NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, CLIENT’S SOLE REMEDY FOR SUCH DAMAGES OR HARM IS TO DISCONTINUE USE OF THE DEVICES. 

8.              Client’s Representations and Warranties.  Client represents and warrants to the Company that it has the full authority to enter into and perform its obligations under this Agreement, and that it will comply with all applicable laws, regulations, and rules in connection with this Agreement. 

9.              Termination.

9.1           Termination by Company. 

 (a)            Termination for Client’s Breach.  In the event that Client breaches its obligations hereunder, Company shall notify Client of such breach, and Client shall have thirty (30) days to cure the breach.  If Client does not cure the breach to the reasonable satisfaction of Company within the thirty (30) day period (or commence efforts to cure the breach, which efforts are proceeding with reasonable diligence and which efforts are reasonably satisfactory to Company), then upon notice to Client, Company may in Company’s sole and absolute discretion immediately terminate this Agreement, or terminate some or all of the Services. 

 (b)           Termination due to Health or Safety Concerns.  Company may terminate this Agreement immediately if the Company determines, in its sole discretion, that conditions at any Client location(s) pose a health or safety threat or risk to any of the Company’s employees, subcontractors, or vendors. 

 (c)            Termination upon Notice. 

(1)           In the event the Services are to be provided on a month-to-month basis, Company may terminate this Agreement for any reason or no reason upon the provision of thirty (30) days’ written notice to Client.

 (2)           In the event the Services are to be provided for a term other than month-to-month, Company may terminate this Agreement for any reason or no reason upon the provision of ninety (90) days’ written notice to Client. 

9.2           Termination by Client. 

 (a)            In the event the Services are to be provided on a month to month basis, Client may terminate this Agreement or terminate certain Services upon thirty (30) days’ written notice to Company. 

(b)           In the event the Services are to be provided for a term other than month to month, Client may terminate this Agreement or terminate certain Services upon the provision of six (6) months’ written notice to Company.   

(c)            If Client terminates certain Services, the Proposal will be deemed modified to remove the specific Services no longer to be provided by Company, and the modified Proposal shall apply thereafter.

 9.3           Obligations on Termination.  Upon termination:

(a)            all Devices on the Network that are owned by the Company will be immediately surrendered and returned to Company; 215 W 4th St Suite 204, Vancouver, WA 98660

(b)           Client shall immediately pay Company for all Services rendered up to the date of termination for which payment has not yet been received by the Company, if any; 

(c)            Within thirty (30) days following termination, each Party will return the other Party’s Confidential Information, or with the consent of the Party to whom such Confidential Information belongs, destroy the other Party’s Confidential Information and provide the other Party with confirmation of such destruction;

(d)           Client agrees to and shall continue to reimburse Company for any and all Microsoft or other licensing fees related to Client and billed to the Company through the end of any then-existing term of a license with Microsoft or other software vendor which license cannot be terminated upon termination of this Agreement; and

(e)            Company agrees that, at such time as any license with Microsoft or other software vendor related to Client is scheduled to terminate, Company will not renew such license.

10.           Mutual Confidentiality Obligations. 

 10.1        Except in connection with performing the Parties’ obligations under this Agreement, each Party, on behalf of itself and its shareholders, directors, officers, members, managers, employees, representatives, successors, and assigns, agrees not to disclose or use, directly or indirectly, the other Party’s Confidential Information without such Party’s prior written consent.  In the event a Party becomes required, pursuant to subpoena or other legal process, to disclose the other Party’s Confidential Information, the Party from whom disclosure is requested will immediately notify the other Party so that the other Party may seek a protective order or other appropriate remedy or waive compliance with this Section 10.1.  In the event that a protective order or other remedy cannot be obtained, then the Party to whom such Confidential Information belongs waives compliance with this Section 10.1 only as to that portion of Confidential Information legally required to be disclosed.  Further, each Party agrees to inform its employees and agents of the Parties’ confidentiality obligations under this Section 10.1 and to promptly notify the other Party in writing upon discovering any unauthorized use or disclosure of the other Party’s Confidential Information.  The Parties agree that in the event of a breach of this Section 10.1, a remedy at law may be inadequate, and therefore, without limiting any other remedy available at law or in equity, the non-breaching Party may seek injunctive relief, specific performance, or other equitable relief. 

 10.2        “Confidential Information” means information relating to a Party’s processes, techniques, work practices, lists of current and prospective customers, suppliers, vendors, business practices, discoveries, inventions, source code, software product prototypes, product development, price information, strategies, systems, current and future business plans, business procedures and methods, manufacturing methods, financial information and data, marketing, forecasts, products, machinery, specifications, patterns, formulas, drawings, sketches, models, samples, tools, technical information, know-how, proprietary information or trade secrets, intellectual property, any other proprietary or confidential information about a Party which is not generally known by the public, and which is received, heard, or viewed by either Party, whether in written, oral, or electronic form. 

11.           Notices.  All notices or other communications required or permitted by this Agreement must be in writing; must be delivered to the Parties at the addresses below (or such modified address as one Party may notify the other Party in writing), or any other address that a Party may designate by notice to the other Parties; and are considered delivered upon actual receipt, if delivered personally, by fax, or by a nationally recognized overnight delivery service; or at the end of the third business day after the date of deposit, if deposited in the United States mail, postage pre-paid, certified, return receipt requested:

if to Company: 

Edge IT, LLC

Attn: Mark Tishenko

215 W 4^th St., Suite 204

Vancouver, WA 98660

and 

if to Client, to the address set forth in the Proposal.

12.           General Provisions. 

12.1        Construction.  The terms of this Agreement apply with respect to the relationship of the Parties, and shall continue to apply notwithstanding any amendment or modification to the Proposal.  Provided, in the event a term of the Proposal conflicts with a term of this Agreement, the term of the Proposal shall govern. 

12.2        Independent Contractor.  The Company is an independent contractor and is not an agent or employee of the Client.  The Company will provide the Services under the general direction of the Client but will determine, in the Company’s sole discretion, the manner and means by which to accomplish the Services.   

12.3        Headings.  The headings provided in this Agreement are for convenience only and shall not be used in interpreting or construing this Agreement.

12.4        Time.  Time is of the essence with respect to the terms of this Agreement.

 12.5        Binding Effect.  This Agreement shall be binding on the Parties and their respective heirs, personal representatives, successors, and permitted assigns, and shall inure to their benefit. 

12.6        Waiver.  No waiver shall be binding on a Party unless it is in writing and signed by the Party making the waiver.  A Party’s waiver of a breach of a provision of this Agreement shall not be a waiver of any other provision or a waiver of a subsequent breach of the same provision. 

12.7        No Assignment.  Client may not assign, transfer, or delegate any rights hereunder without the prior written approval of Company, which written consent may be withheld in Company’s sole discretion. 

 12.8        Severability.  If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such determination shall not affect the enforceability of the provision in any other respect and of the remaining provisions hereof.

12.9        No Third-Party Beneficiaries.  Except for parties entitled to indemnification hereunder, the Parties do not intend to confer a right or remedy on any third party. 

12.10     Attachments.  All exhibits, schedules, addenda, and other attachments referenced in this Agreement, including but not limited to the Proposal, are expressly incorporated into and a part of this Agreement. 

12.11     Amendments.  This Agreement may be amended by a written instrument executed by both Parties hereto. 

 12.12     Survival.  The Parties agree that their respective rights, obligations, and duties that by their nature extend beyond the expiration or termination of this Agreement, including but not limited to Sections 4.3, 5.2, 6, 7, 9.3, 10, 11, 12.5, 12.8, 12.12, 12.13, 12.14, 12.15, and 12.16, shall survive any expiration or termination of this Agreement.

 12.13     Remedies.  All rights and remedies, whether conferred hereunder, or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently.  Failure by either Party to enforce any term hereof will not be deemed a waiver of future enforcement of that or any other term.

 12.14     Governing Law.  This Agreement is governed by the laws of the State of Washington, without giving effect to any conflict-of-law principle that would result in the laws of any other jurisdiction governing this Agreement.

 12.15     Venue.  Any action, suit, or proceeding arising out of the subject matter of this Agreement will be litigated in courts located in Clark County, Washington.  Each Party consents and submits to the jurisdiction of any local, state, or federal court located in Clark County, Washington.

 12.16     Attorneys’ Fees.  If any arbitration, action, suit, or proceeding is instituted to interpret, enforce, or rescind this Agreement, or otherwise in connection with the subject matter of this Agreement, including but not limited to any proceeding brought under the United States Bankruptcy Code, the prevailing Party on a claim shall be entitled to recover with respect to the claim, in addition to any other relief awarded, the prevailing Party’s reasonable attorneys’ fees and other fees, costs, and expenses of every kind incurred in connection with the arbitration, action, suit, or proceeding, any appeal or petition for review, the collection of any award, or the enforcement of any order, as determined by the arbitrator or court.

12.17     Entire Agreement; Conflicting Terms.  This Agreement, including all documents or instruments referenced herein, including but not limited to the Proposal, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations and agreements, whether written or oral, between the Parties with respect to the subject matter of this Agreement.  Further, except as to amendments to the Proposal as permitted by this Agreement, the Parties hereby expressly reject any proposed modification or supplementation to this Agreement based on written communications (except for amendments to this Agreement duly executed by authorized representatives of both Parties), conduct of the Parties, or trade usage.