Master Service Agreement
This Master Service Agreement (“Agreement”) is made between SingleWave, LLC headquartered in St. Charles, Missouri (“Service Provider”), and Customer. The Customer is an entity that engages the Service Provider to render Services via a statement of work(s).
Updated 6 December 2022
The parties agree as follows:
a. General. Service Provider agrees to provide Customer the services set for in statements of work(s).
b. Service Changes. Service Provider may from time to time change the services provided to Customer under this Agreement. Customer may order, and Service Provider may agree to provide, additional services not covered by this agreement (“Out of Plan Services”) at mutually agreed rates. The Managed Services and the Out of Plan Services are collectively referred to as the “Services.”
c. Exclusions and Assumptions for Managed Services.
i. Line of Business Applications – Unless otherwise stated explicitly in a statement of work, line of business applications such as accounting packages, customer relationship management (CRM) software, enterprise resource planning (ERP) software, etc. that are not specifically mentioned herein, fall outside the scope of this Agreement. Reasonable attempts will be made to correct connectivity issues to such applications; however problems specific to the application or network problems caused by the application are excluded. Customers are encouraged to maintain current support agreements with vendors of these products.
ii. Site Access − If appropriate, Customer will be responsible for obtaining proper and adequate permission and credentials for Service Provider to enter upon and operate within the lands, properties, and premises designated as The Customer’s work area.
iii. Usernames and Passwords – Customer acknowledges that Service Provider must have access to any and all systems and resources to perform their duties under this agreement. As such, Service Provider must have access to any and all usernames and passwords.
iv. Project & Integration Work − Project & integration work is defined as any service designed to add or increase functionality or capacity; in other words, any work that is not designed to support existing systems or persons. Projects are outside the scope of this agreement and as such will be quoted separately. Project & integration work will be identified to the Customer as such before any work is performed.
v. Limitations of Technology − The Customer acknowledges that technologies are not universally compatible, and that there may be particular services or devices that Service Provider may be unable to monitor, manage, or patch. Service Provider agrees to inform the Customer when such situation exists. Customer agrees to correct situation if applicable, and to hold Service Provider harmless in any case. Because there are risks associated with applying and failing to apply patches, Service Provider constantly reviews and updates our best practices based on the relative threats to patch delivery timing. Every effort is made to balance the reduction of vulnerabilities with the slight destabilization risk associated with applying new patches to otherwise stable systems. Patch definitions and antivirus definitions are distributed by their respective software vendors, and as such, Service Provider has no direct control over the effectiveness or lack thereof of the software being applied. Service Provider shall not be held responsible for interruptions in service due to patches released by software vendors.
2. Term and Termination
a. Contract Term. The term for the agreement will be defined in the Statement of Work(s).
b. Termination. This Agreement may be terminated as follows: (i) either party may terminate this Agreement at the end of a contract term with ninety (90) days’ written notice to the other party prior to the end of the initial or additional term; (ii) upon Service Providers failure to perform or observe a material term or condition of this Agreement and failure to correct within thirty (30) days after receipt of written notice from Customer of such failure, Customer may terminate the Services affected by such breach; and (iii) upon Customer’s failure to pay any outstanding charges within ten (10) days of receipt of written notice from Service Provider of delinquency, Service Provider may terminate this Agreement.
c. Effect of Termination. Upon termination of this Agreement, Customer will be liable for all charges incurred as of the date of termination, all future charges due during the term of this Agreement, and, if applicable, any costs caused by Customer’s early termination.
d. Termination for Health and Safety. The Service Provider reserves the right to suspend or terminate the Agreement if, in its sole discretion, conditions at the service site pose a health or safety threat to any of our representatives.
e. Offboarding. All fees must be paid in full before receiving offboarding assistance. The Service Provider will facilitate the termination of this Agreement by providing administrative credentials held by the Service Provider and instructions on removing Service Provider’s software. If additional assistance is required during offboarding and the request occurs after the effective termination date, the Service Provider will bill the Customer at Service Provider’s standard hourly rate.
3. Payment Terms
a. Fees. The fees for Services (“Fees”) are set forth in the statement of work(s). Fees will be invoiced in to Customer and, unless otherwise stated in a statement of work, are due upon receipt. Fees are based on the number of devices that are monitored and may be adjusted if the quantities of monitored devices changes. Services will be suspended if payment is not received within thirty (30) days following invoice date. It is understood that any and all Services requested by Customer that fall outside of the terms of this Agreement will be considered “Projects,” and will be quoted and billed as separate Out of Plan Services.
b. Pricing. Agreed upon pricing will remain in effect for the length of the contract term. Service Provider retains the right to change pricing on renewal of the contract term without prior notice. Should adjustments or modifications be required that increase the monthly fees paid for the Managed Services rendered under this Agreement, these increases will not exceed 10% of such fees annually.
c. Taxes. Amounts payable by Customer hereunder do not include local, state or federal sales, use, value-added or other taxes based on work or Services provided under this Agreement. Customer will pay all such taxes as may be imposed upon Service Provider or Customer, except income taxes imposed on Service Provider.
d. Failure to Pay. Customer acknowledges that its failure to pay timely any of the fees under this Agreement will be a material breach of this Agreement for which Service Provider may, in addition to pursuing all other remedies, withhold Services and/or terminate this Agreement.
4. Customer Responsibilities
a. Authorized Contact. Customer will identify one individual to be Service Provider’s primary Customer contact and another individual as the secondary contact. Such contacts have authorization to make decisions on behalf of Customer and may be relied upon by Service Provider when providing Services.
b. Provision of Materials and Services by Customer. Customer shall timely furnish, at its expense, all personnel, necessary internet connectivity, computer hardware, software, software licensing, and related materials, as well as appropriate and safe work spaces for Service Provider to provide the Services. Customer shall also provide Service Provider with access to all information, passwords and facilities requested by Service Provider that are necessary for Service Provider to perform the Services. If access is denied for any reason, Customer understands that the Service Provider may be unable to perform its duties adequately and Service Provider will be held harmless.
c. Customer Responsibility for Equipment. Customer shall provide a suitable environment for any Equipment located at Customer’s facility. Such environment includes appropriate temperature, static electricity and humidity controls and properly conditioned electrical supply. Customer shall bear the risk of loss of any Equipment located at Customer’s facility.
d. Additional Material. Customer acknowledges that from time to time Service Provider may identify additional items that need to be purchase by Customer and changes in Customer’s system that may be required for Service Provider to meet Customer’s requirements. Customer agrees to work in good faith with Service Provider to make such purchase and changes.
e. Software Installation. If Service Provider is required to install software as part of the Services, Customer will independently confirm and hereby warrants that all such software is properly licensed. Customer will indemnify and hold harmless Service Provider against any damages and expenses related to Customer providing infringing or unlicensed material to Service Provider.
f. Notification of Other Services. Customer will inform us, prior to, us making any modification, installation, or service performed on the Network by individuals not employed by us to assist us in providing an efficient and effective Network support response.
g. Cyber Security Insurance and Disclosure. No cyber security solution can guarantee protection against any and all hacking, cyber-attacks, electronic fraud, data breaches, etc. Customer shall maintain sufficient cyber security insurance as deemed appropriate by Customer and qualified Insurance Broker. In no event, including the negligent act or omission on its part, will the Service Provider, whether under these Terms, a statement of work, other contract documents or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of a data breach or cyber-attack, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any hacking, criminal act, act of terrorism, security breach, strike or similar labor action, or act of war.
5. Proprietary Rights.
a. Service Provider’s Intellectual Property. The parties agree that Service Provider may use preexisting proprietary computer software, methodology, techniques, tools, algorithms, materials, ideas, skills, or other intellectual property owned by Service Provider or its licensors, and may create additional intellectual property based on the performance of the Services (“Service Provider IP”). Customer agrees that any and all rights to Service Provider IP are the sole and exclusive property of Service Provider and Customer hereby assigns to Service Provider any right it may have in any of the foregoing.
b. Restriction on Service Provider Intellectual Property. Customer will not copy, use, modify, or distribute any Service Provider IP except as provided in this Agreement.
c. Customer Data Ownership and Responsibility. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use of any data, information or material proprietary to Customer or provide or submitted by Customer in the course of using the Services (“Customer Data”). Service Provider shall not be liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Customer has and shall retain ownership of all Customer Data. In the event that this Agreement is terminated, Service Provider shall make available to Customer a file of the Customer Data in Service Provider’s possession within thirty (30) days of termination upon Customer’s request at the time of termination.
6. Relationship of Parties, Non-Solicitation. Service Provider is an independent contractor. Neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party. This Agreement shall not be construed to create a joint venture or partnership between the parties. During the term of this Agreement and for a period of one (1) year thereafter, a party will not, without the prior written approval of the other party, solicit for employment any employee of the other party or directly or indirectly induce any such employee to terminate employment with the other party.
7. Warranty. Service Provider warrants that it will exercise commercially reasonable efforts to perform the Services. For any breach of the foregoing warranty, Service Provider will re-perform any non-conforming Services that were performed within the ten (10) business day period immediately preceding the date of Customer’s written notice to Service Provider specifying in reasonable detail such non-conformance. If Service Provider concludes that conformance is impracticable, then Service Provider will refund all fees paid by Customer to Service Provider, if any, allocable to such nonconforming Services. Product warranties for third party products, if any, are provided by the manufacturers thereof and not by Service Provider. Service Provider’s sole obligation is to act on behalf of Customer to assist in the satisfaction of any such warranty.
a. Exclusive Remedies. The remedies set forth in Section 7 (Warranty) shall be Customer’s exclusive remedies and Service Provider’s sole obligation and liability for any claim that (i) a Service or other deliverable does not conform to the warranties hereunder, or (ii) the Services were performed improperly.
b. Acts Within Customer’s Control. Service Provider shall not be responsible for impairments to the Services caused by acts within the control of Customer or its employees, agents, contractors, suppliers or licensees, the interoperability of Customer applications or other cause reasonably within Customer’s control and not reasonably related to Services provided hereunder.
c. WARRANTY DISCLAIMER. EXCEPT FOR WARRANTIES MADE BY SERVICE PROVIDER IN SECTION 7, THE SERVICES AND ANY DELIVERABLES ARE PROVIDED STRICTLY “AS IS.” SERVICE PROVIDER MAKES NO ADDITIONAL WARRANTIES, EXPRESS OR IMPLIED, AS TO SERVICES OR ANY DELIVERABLES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT. SERVICE PROVIDE DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET CUSTOMER’S REQUIREMENTS, OR WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER MAY SELECT FOR USE, THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
9. LIMITATION OF LIABILITY. SERVICE PROVIDER SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND. SERVICE PROVIDER’S LIABILITY TO CUSTOMER RELATING TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES IN AN AGGREGATE AMOUNT NOT TO EXCEED THE AMOUNTS PAID BY CUSTOMER OF ANY SERVICES DURING THE SIX (6) MONTH PERIOD PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM FOR DAMAGES. THESE LIMITATIONS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR STRICT LIABILITY.
10. Force Majeure. With the exception of Customer payment for Services, neither party shall be responsible for any failure to perform or delay caused where such failure or delay is due to circumstances reasonably beyond the party’s control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, pandemic, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.
a. Confidentiality. “Confidential Information” means all non-public technical or business information disclosed by one party to the other party and marked as proprietary. The receiving party shall hold such Confidential Information in confidence for three (3) years after termination of this Agreement, restrict disclosure of such information solely to its employees with a need to know, and use a degree of care no less than the degree of care it uses for its own confidential information to prevent the unauthorized disclosure, use or publication of confidential information.
b. Severability. If any provision of these Terms is determined by a court of competent jurisdiction to be illegal or unenforceable, such provision will be automatically reformed and construed to be valid, operative and enforceable, to the maximum extent permitted by law or equity while preserving its original intent. The invalidity of any part of these Terms will not render invalid the remainder of the Terms.
c. Entire Agreement, Modifications, Waiver, Assignment; Jurisdiction. This Agreement, together with the statement of work(s), contains all the agreements, representations and understanding of the parties and supersedes any previous understandings, commitments, or agreements, oral or written with respect to the subject matter of the Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party. No failure on the part of either party to exercise, and no delay in exercising, any right, power or privilege will operate as a waiver thereof. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Customer may not assign its rights or obligations under this Agreement without Service Provider’s prior written consent, which shall not be unreasonably withheld. The parties hereto submit to the exclusive jurisdiction and venue of the state and federal courts of Missouri.
d. Changes of Terms and Conditions. Terms and conditions, including services, are subject to change by the Service Provider. Service Provider will notify you of any such changes via email to the Authorized Contact. Customer may reject such changes by delivering written notice, via email, to us of cancellation of the agreement within 10 days from the date of such notice. Cancellation pursuant to this paragraph will be without penalty to you. Customer’s continued use of our services after the 30-day notice period has expired constitutes Customer’s acceptance of revised terms, condition, and/or services.
e. Notices. All notices under this Agreement must be in writing. Notices may be sent by any reasonable means including U.S. Mail, courier, overnight delivery service (e.g. Federal Express), facsimile transmission (FAX) or electronic mail (e-mail).
f. Counterpart and Electronic Signatures. These Terms must be executed as part of your Statement Of Work and by agreeing to the Statement Of Work and initializing the Statement Of Work that you have read and understood these Terms, these Terms are now part of, and integrated into, the Statement Of Work, and each of which will be deemed to be an original and all of which together will be deemed to be one and the same instrument. Your electronic signature on the Statement Of Work will have the same validity and effect as a signature affixed by your hand.