Legal IntelliNet Corporation's Terms and Conditions
MASTER SERVICE AGREEMENT (MSA)
THIS MASTER SERVICE AGREEMENT (the “MSA”) is by and between IntelliNet Corporation ("IntelliNet''), an Ohio corporation with offices located at 1111 Chester Avenue, Suite 200, Cleveland, OH 44114 and the client ("Client"), a _________________ located at __________________. This MSA will commence and be effective on the date of the last execution hereof (“Effective Date”).
WHEREAS, IntelliNet is a provider of a broad range of enterprise Information Technology (IT) services, consulting, engineering, service desk, SaaS, IaaS, and cloud-related services (“Services”) and related equipment (“Products”) and Client desires to purchase certain of these Services and Products from IntelliNet. IntelliNet is willing to provide the Services and Products to Client pursuant to the rates, terms, and conditions set forth in this MSA, any Statement of Work (“SOW”), Technical Services Agreement (“TSA”), or other mutually-agreed upon written authorization, and any applicable attachments; and;
THEREFORE, in consideration of the mutual promises contained herein, the recitals set forth above and which are incorporated by reference, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
IntelliNet agrees to provide certain Services and related Products and ad hoc technology support requests on various projects, business opportunities, managed technology services, as identified and specified in SOWs, TSAs, or other written authorization between Client and IntelliNet. Neither party shall incur any obligation for or costs associated with Services and/or Products until an SOW, TSA, or other written authorization has been executed in accordance with this MSA.
2. SOWs, TSAs, and other Written Authorization
a. Each request for Services and/or related Products shall be initiated by Client in the form of: (i) an SOW; (ii) a TSA; (iii) or another form written authorization mutually agreed upon by the parties which, along with any associated attachments, shall become a part of and incorporated into this MSA.
b. Each SOW, TSA, or other written authorization shall be issued in accordance with paragraph 3 hereof, “Initiation of Statement of Work and Technology Services,” and shall specify a description of Services to be performed and Products to be provided, as applicable; an approximation of duration of the Services; the delivery schedule for any Services milestones; and the rates, fees, and costs for the Service and Products and to be paid by Client. Any expenses relating to the provision of any Services and Products shall be estimated in the SOW, TSA, or written authorization, shall be the obligation of Client, and shall be mutually approved by the parties.
c. No obligation as to either party shall arise under a SOW, TSA, or other written authorization until it is mutually approved and executed by the parties. Payments due to IntelliNet hereunder shall be paid in accordance with paragraph 5 hereof.
3. Initiation of Statement of Work and Technology Services
a. SOW – Upon request of Services and related Products, as applicable, IntelliNet shall prepare an SOW or other written authorization for Client’s review and execution, in the general format shown in SCHEDULE A.
b. TSA – a Client may request certain Services in an “ad hoc fashion,” which are encompassed by this MSA and an associated TSA. A Client shall pay for Services pursuant to and described in any TSA on a “time and material basis:” (i) time required to provide a Service, charged at a specified rate; and, (ii) the Products or other materials associated with the provision of the Service. Services under a TSA shall be requested by Client through IntelliNet’s 24/7/365 Service Desk. TSAs shall be in the general format shown in SCHEDULE B.
c. Upon approval and execution by Client of an SOW, TSA, or other written authorization, IntelliNet shall also execute the SOW, TSA, or other written authorization and provide Client with an executed copy.
4. Compensation; Taxes.
Client agrees to pay IntelliNet for Services in accordance with the hourly rate and/or the managed services fees established in an SOW, TSA, or other written authorization. Client further agrees to pay IntelliNet for Products and other costs arising from or relating to the Services, e.g., approved expenses incurred by IntelliNet. Unless otherwise specified in an applicable SOW, TSA, or other written authorization, any charges thereunder do not reflect any associated taxes with Services and Products. Client shall be solely responsible for all sales, use, property, value added, or other similar taxes based on Services and/or Products provided, as well as any interest or penalties incurred due to late payment or nonpayment of such taxes. If IntelliNet is required to pay any taxes, interest, or penalties on behalf of Client, IntelliNet shall charge Client for the amount of such payment. Client agrees to pay to IntelliNet the full amount of any payment made for taxes, interest, or penalties on its behalf within thirty (30) days.
5. Invoice and Payment
a. IntelliNet shall invoice Client monthly or upon completion of SOW, TSA, or other written authorization, whichever is of shorter duration. Invoices shall be accompanied by a corollary timesheet(s) and any other supporting documents as Client may reasonably require. Additional requirements for documentation supporting invoices shall be set forth in the SOW, TSA, or other written authorization.
b. Client shall pay each invoice within thirty (30) days from date of receipt.
c. IntelliNet shall have the right to charge Client interest on all past due amounts from the due date until paid, at a rate of either (i) one-and-one-half percent (1 ½%) per month on the outstanding balance; or (ii) the maximum interest rate allowed by law, whichever is greater. Client shall also pay IntelliNet’s cost of collection for past due amounts (including reasonable attorneys’ fees). Payments may be applied by IntelliNet in its discretion against any obligation owed by Client to IntelliNet.
6. Work Assignments
a. IntelliNet personnel shall work under the professional/technical direction and work assignments, as required and designated by Client in an SOW or other written authorization.
b. Services shall be accomplished at Client-designated locations and during normal business hours appropriate to the Services specified in the SOW or other written authorization. Facilities and office supplies shall be provided to IntelliNet's personnel by Client and at Client’s expense.
c. Client acknowledges and agrees that, except as expressly set forth herein or in an applicable SOW, TSA, or other written authorization, IntelliNet may staff the Services at its discretion. IntelliNet has the right to subcontract the performance of any Services, in whole or in part, under this MSA or any applicable SOW, TSA, or other written authorization, provided such subcontracting shall not relieve IntelliNet of its obligations hereunder. Client acknowledges that IntelliNet shall not be liable for any (i) acts of negligence, gross negligence, or intentional conduct by any subcontracted parties; (ii) acts by any subcontracted parties that do not arise from or relate to provision of any Services.
7. Confidentiality, Proprietary Rights, and Future Business
a. Each party agrees that, except as is expressly authorized by the other party, it shall not, at any time during or after the term of this MSA, directly or indirectly, disclose, divulge, reveal, report, publish, transfer, or use for any purpose “CONFIDENTIAL INFORMATION” belonging to the other party. The term CONFIDENTIAL INFORMATION includes but is not limited to concepts, design data, system design, computer programs, algorithms, software, firmware, hardware, manuals, drawings, processes, specifications, instructions, research, test procedures and results, equipment and identity and description of computerized records. Each party further agrees that, upon termination or expiration of this MSA, a party shall return the other party’s CONFIDENTIAL INFORMATION, as well as and any other information or material of the other party in its possession, custody or control.
b. IntelliNet acknowledges that neither it nor its employees or agents has any right to or interest in any work product or deliverables resulting from the Services performed hereunder and specifically designated as “Work Product” or Deliverables” in an applicable SOW or other written authorization; nor any right to any copyright, patent, license or any other intellectual property right in the Work Product or Deliverables (the “Derivative IP”). IntelliNet acknowledges that any such Work Product or Deliverables has been specifically commissioned or ordered by Client under the applicable SOW or other written authorization as "works-made-for-hire," as that term is used in the copyright law of the United States, and that Client is, therefore, to be deemed the author and is the owner of any resulting Derivative IP. IntelliNet hereby assigns and transfers to Client all right, title and interest in all Derivative IP and any intellectual property rights pertaining to that Derivative IP.
c. Except as expressly set forth herein or in the applicable SOW, each party shall retain sole and exclusive title and ownership of its own respective software, system, algorithms, know-how, trade secrets, and/or technology, and all related, non-Derivative IP intellectual property rights, rights to patents, copyrights, trademarks and trade secrets, and rights to any and all ideas, designs, concepts, techniques, discoveries, inventions, enhancements, improvements, products, computer programs, procedures, specifications, data, memoranda, and other materials, whether or not patentable, related to the foregoing (collectively, the “Intellectual Property Rights”). Nothing herein shall be construed as a transfer, assignment, or license of any Intellectual Property Rights of a party or any or its principals or affiliates (including by estoppel), except as specifically provided herein or in an applicable SOW or other written authorization. For avoidance of doubt, IntelliNet shall retain sole and exclusive ownership of its background or underlying concepts and other Intellectual Property Rights existing before any Derivative IP resulting from Services provided under this MSA, as well as any Intellectual Property Rights developed by IntelliNet or its affiliates, principals, personnel or representatives independent of the transactions contemplated under this MSA or any SOW or other written authorization (collectively, the “Background Materials”), including to the extent incorporated as part of or used to provide the Services. Subject in all cases to Client’s payment of all fees or other amounts owed to IntelliNet hereunder, IntelliNet hereby grants to Client a revocable, royalty-free, and non-exclusive license to access and use the Background Materials of IntelliNet, solely to the extent necessary for Client to access and use the Services in the manner contemplated hereunder and under the applicable SOW.
8. Covenant Against Solicitation of Employees And Agents
Client and IntelliNet agree that, during the term of this MSA and for the period of one (1) year after the termination or expiration of this MSA, neither they nor their subsidiaries or other affiliated entities or persons shall, directly or indirectly, on behalf of themselves or any other person or entity, solicit for employment or engagement, hire, employ, engage, or otherwise retain employees, consultants, or agents of the other party or its affiliates whom they have met or become aware of as a result of the performance of Services or other transactions under this MSA or any SOW, TSA, or other written authorization, without the prior written consent of the other party.
a. The parties acknowledge that, in the event of a breach of paragraphs 7 or 8, the non-breaching party may suffer irreparable harm, for which monetary damages may be inadequate. Accordingly, the non-breaching party, in addition to and not in limitation of, any other remedies or damages that it may have at law or in equity, shall be entitled to seek injunctive relief to prevent or to restrain any such breach.
b. The parties acknowledge that, in the event of a breach of paragraphs 7, or 8, the non-breaching party shall be entitled to an accounting and to seek repayment of all profits, compensation, royalties, commissions, remuneration, or benefits that the breaching party has realized or may realize relating to, growing out of, or in connection with any such violation; such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to which the non-breaching party may be entitled at law or in equity.
c. Any failure of a party to demand rigid adherence to one or more of this MSA's terms on one or more occasions shall not be construed as a waiver nor deprive the non-breaching party's right to insist upon strict compliance.
10. Force Majeure
Neither party shall be liable for failure to perform any of its obligations under this MSA during any period when performance is delayed by fire, flood or other natural disaster, war, embargo, riot, strike, lockouts, epidemics, and/or government regulation or intervention imposed after the execution of this MSA. Under no circumstances shall a force majeure event delay or excuse Client’s payment obligations hereunder.
All notices, requests, demands and other communications under this MSA must be in writing and shall be deemed duly given, unless otherwise expressly indicated to the contrary in this MSA: (i) when personally delivered; (ii) upon receipt of a telephone facsimile transmission with a confirmed telephonic transmission; (iii) upon receipt of an electronic mail transmission with a confirmed electronic mail transmission; (iv) three (3) days after having been deposited in the United States mail, certified or registered, return receipt requested, postage prepaid; or (v) one (1) business day after having been dispatched by a nationally recognized overnight courier service, addressed to the parties or their permitted assigns at the following addresses (or at such other address or number as is given in writing by either party to the other):
Ronald J. Taton, President
1111 Chester Avenue
Cleveland, OH 44114
Phone: (216) 289-4100
Fax: (216) 344-3886
IntelliNet and Client agree not to transfer, assign, or delegate any of its rights or obligations under this MSA without the prior written consent of the other party, which shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, and in addition to delegation rights under paragraph 6, IntelliNet is permitted to transfer or assign its rights and duties hereunder, or any SOW, TSA, and/or other written authorization, in connection with a sale or transfer of all or substantially all of its assets, equity securities, or business (by merger or otherwise). Any transfer, assignment, or delegation in violation of the foregoing restrictions shall be void and shall constitute a material breach and ground for termination of this MSA. All of the terms of this MSA shall be binding upon the respective successors and assigns of the parties hereto and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns.
13. Termination of MSA
a. The term of this MSA shall begin on the date first set forth above and shall remain in effect through December 2019 (the “Initial Term”), unless terminated pursuant to the terms of this paragraph 13. Upon expiration of the Initial Term and each Renewal Term and subject to any right of termination provided herein, this MSA shall be automatically renewed for a successive renewal period of twelve (12) months (a “Renewal Term”) unless either party delivers a notice of termination to the other at least thirty (30) days prior to the end of an applicable Initial Term or Renewal Term.
b. The obligations of paragraphs 7 and 8 and the remedies for the breach thereof, as well as any other provision herein or in any SOW, TSA, or other written authorization that ought reasonably be construed to survive termination or expiration of this MSA, shall survive the termination or expiration of this MSA.
c. Either party may terminate this MSA upon a material breach by the other party. Further, to the extent permitted by law, either party may immediately terminate this MSA in the event of: (i) an assignment for the benefit of creditors by the other party or the voluntary appointment (at the request of the other party or with the consent of the other party) of a receiver, custodian, liquidator, or trust in bankruptcy of the other party’s property or the filing by the other party of a petition in bankruptcy or other similar proceeding under any law for relief of debtors; (ii) the filing against the other party of a petition in bankruptcy or other similar proceeding under any law for relief of debtors, or the involuntary appointment of a receiver, custodian, liquidator or trustee in bankruptcy of the other party’s property, where such petition or appointment is not vacated or discharged within sixty (60) days after the filing or making thereof; or (iii) the other party liquidates, dissolves, or otherwise ceases business operations.
d. Subject to paragraph 13(e), Client shall also be permitted to terminate this (i) MSA; or (ii) any SOW, TSA, or other written authorization in effect for “convenience,” i.e., for any reason or no reason. Client shall provide IntelliNet written notification of the early termination of this MSA under this paragraph 13(d) at least thirty (30) days prior to the actual early termination date. In connection with the termination notification, Client shall identify its reasons for such early termination, including, without limitation, whether such termination is for the convenience of Client.
e. If Client terminates this MSA pursuant to paragraph 13(d), Client shall pay IntelliNet, the lesser of (as determined based upon each SOW, TSA, or other written authorization then in effect) (a) six months Services; or (b) sixty percent (60%) of the remaining contract balance for the Services. For any SOW, TSA, or other written authorization terminated pursuant to paragraph 13(d), but without termination of the MSA as described in paragraph 13(f), Client shall pay IntelliNet ______________________________________.
f. Unless as otherwise agreed by the parties, as specified in an SOW, TSA, other written authorization, or elsewhere in this MSA, termination or expiration of this MSA shall not affect the validity of any SOW then in effect, which shall each remain in full force and effect in accordance with their respective terms. Unless otherwise stated in the applicable SOW, the term of a SOW shall commence upon commencement of the Services specified therein, and shall remain in effect until performance thereunder is completed. Notwithstanding the term and termination provisions set forth above, either party may terminate a particular SOW, TSA, or other written authorization (in accordance with the terms and conditions set forth therein), without such termination acting as a termination of this MSA or any other SOW. Upon termination or expiration of this MSA, all further licenses and rights of the parties shall cease, except that IntelliNet shall be entitled to any compensation or other amounts earned with respect to Services provided through the effective date of termination, and except as provided in paragraph 13(e) above.
14. Warranties and Limited Remedies
a. IntelliNet Warranties. IntelliNet warrants that the Services shall be provided by staff possessing the required skills and experience and that the Services shall be performed in a professional and workmanlike manner. THE FOREGOING WARRANTY IS THE ONLY WARRANTY INTELLINET HAS GIVEN TO CLIENT WITH RESPECT TO THE PRODUCTS AND SERVICES. SUCH WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR NON-INFRINGEMENT. EXCEPT AS OTHERWISE PROVIDED HEREIN OR IN A PARTICULAR SOW, ALL SERVICES ARE BEING PROVIDED TO CLIENT ON AN “AS IS” BASIS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, SERVICE INTERRUPTIONS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. INTELLINET IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH ISSUES OR PROBLEMS. CLIENT’S SOLE REMEDY IN THE EVENT OF A BREACH OF THE FOREGOING WARRANTIES IS THE CORRECTION OF THE SERVICES OR WORK PRODUCT GIVING RISE TO THE CLAIMED DEFECT OR ISSUE. IntelliNet’s correction of any Services or Work Product in the manner contemplated by this provision or any other warranty provided by IntelliNet shall not be deemed an admission of any fault on the part of IntelliNet or its principals or affiliates, or an admission that the Services or Work Product are otherwise defective or non-conforming.
b. Client Obligations. In accessing or utilizing the Services, Client agrees to abide, and to cause its employees, agents, and end users to abide, by all applicable local, state, national and foreign laws, treaties and regulations, including without limitation those related to data privacy, international communications, and the transmission of technical or personal data.
c. Limitation of Damages. Notwithstanding any other term or provision contained herein to the contrary, the liability of IntelliNet and/or its principals, agents, and affiliates to Client shall in all cases be limited to the fees actually received by IntelliNet for Services performed under the MSA, as calculated for the twelve (12) month period immediately preceding the date of the event that gave rise to the claim for liability under this MSA. EXCEPT IN THE CASE OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR IN THE CASE OF A PARTY’S BREACH OF PARAGRAPH 7 OR PARAGRAPH 8 ABOVE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, LOST BUSINESS, POSTAL CHARGES OR LOST PROFITS), WHETHER FORESEEABLE OR NOT AND HOWEVER CAUSED, EVEN IF THE PARTY IS ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MIGHT ARISE. Any claim by Client arising from or relating to this MSA must be brought within one (1) year from the date that the claim arose. Client shall defend, indemnify, and hold IntelliNet harmless from all claims and damages arising from, related to, or resulting from (i) Client’s breach of this MSA and its own negligence, gross negligence, or intentional conduct; (ii) any unauthorized access to and/or any alteration, theft, destruction, and/or disclosure of Client’s network, transmission facilities, equipment, electronically-stored data and information, files, programs, procedure, information, and any other network elements or content.
15. Network Security.
In no event shall IntelliNet be responsible for: (i) the security or protection of Client’s network, transmission facilities, equipment, electronically-stored data and information, files, programs, procedure, information, and any other IT and/or network elements or content from unauthorized access; or, (ii) any unauthorized access to, alteration, theft, destruction, or disclosure of Client’s network, transmission facilities, equipment, electronically stored data and information, files, programs, procedure, information, or any other network elements or content.
It is Client’s sole responsibility to monitor and ensure proper use of user ID and password for all purposes, including but not limited to and to extent applicable, any ID and passwords associated with portals, websites, or online tools provided with the Services (collectively “access codes”). Client accepts all responsibility for the security of the access codes and its utilization of the secure areas of said portals, websites, or online tools.
16. Equal Employment Opportunity
During the performance of this MSA, IntelliNet agrees as follows:
a. IntelliNet shall not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. IntelliNet shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. IntelliNet agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.
b. IntelliNet shall, in all solicitations or advertisements for employees placed by or on behalf of IntelliNet, state that all qualified applicants shall receive consideration for employment without regard to race, creed, color, or national origin.
a. This MSA, the SOWs, TSAs, other written authorization arising from or relating to this MSA, and all other documents incorporated herein, comprise the MSA between the parties and, as of its date, supersedes all prior agreements, negotiations, representations and proposals, written or oral. Its terms cannot be modified, supplemented or rescinded except by an agreement in writing signed by both parties. Neither party shall be bound by nor be liable to the other party for any representation, promise, or inducement made by any agent or person in the other's employ, which is not embodied in this MSA. In the event of any discrepancy or inconsistency between the MSA and a document other than a SOW, the terms of the MSA shall govern. In the event of any discrepancy or inconsistency between the MSA and any applicable SOW, the terms of the applicable SOW shall govern.
b. This MSA shall be construed, defined and interpreted under the laws of the Ohio. Any legal action arising out of or relating to this MSA or the transactions contemplated by this MSA shall exclusively be brought in the state or Federal courts located in Cuyahoga County, Ohio. Each party hereto consents to the exclusive personal jurisdiction of the court listed above in any such action, and waives any defense of inconvenient forum to the maintenance of an action in the above-referenced courts.
c. IntelliNet and Client agree that IntelliNet shall act at all times as an independent contractor. At no time shall either party make any commitments or representations or incur any charges for or in the name of the other party.
d. IntelliNet shall be responsible for the payment of all wages and salaries payable to IntelliNet employees, consultants, and agents and the cost of providing any fringe benefits to which they are entitled by reason of being employed or otherwise engaged by IntelliNet. IntelliNet shall also be responsible for withholding and payment of all payroll taxes on its assigned employees and compliance with all state employment and workmen's compensation laws.
e. In the event any provision of this MSA is declared to be invalid or void by any court of competent jurisdiction, such provision shall be null and void and shall be deemed deleted from this MSA, and all the remaining terms of the MSA shall remain in full force and effect.
f. The covenants of the parties set forth in paragraphs 7 and 8 shall each be construed as a separate agreement, independent of any other provisions hereof. The existence of any claim or cause of action by one party against the other shall not constitute a defense to the enforcement by the non-breaching party of paragraphs 7 and 8.
g. This MSA may be executed into any number of counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument. Facsimile and electronically scanned signatures shall be deemed the same as originals and shall be legally binding.
IN WITNESS WHEREOF, the parties hereto have caused this Master Services Agreement including attachments to be executed the day and year first written above.
Executed By: John O’Donnell
Vice President & General Manager
Signature: ________________________________ Date: _________________
Executed By: _______________________________
Signature: ________________________________ Date: _________________
The SOW or other written authorization is subordinate to the MSA. The elements below are a superset of the components of Statements of Work or other written authorizations:
• Cover Page
• Executive Overview or Project Overview
• Services Proposed or Responsibilities and Tasks
• Hardware and/or Software Product(s)
• Pricing and Terms
• Payment and Invoicing
• Review and Execution
The TSA or other written authorization is subordinate to the MSA. The elements below are a superset of the components of the TSA. The TSA’s main purpose is to enable IntelliNet’s ability to deliver services on time and material basis in an “AD hoc” fashion.
• The Service
• How to contact the IntelliNet Service Desk
• How are services works
• Rate Schedule
• Invoicing and Terms
• Additional term at (www.intellinetcorp.com/legal)
• Client Execution