Master Services Agreement
The following terms and conditions outline our relationship with you and define Big U Computers' liability regarding any services or products provided to you. It's important to carefully read these terms and retain a copy for your records.
1) SCOPE OF SERVICES; SOW.
This Master Services Agreement (the "Agreement") governs all services performed by us, as well as any services, licenses, or products that Big U Computers, a Pennsylvania corporation located at Macungie, Pennsylvania 18062 ("we", "our", "us", or "Big U Computers"), provides or resells to you (collectively referred to as the "Services"). The specific details of the Services are not outlined in this Agreement. Instead, the Services will be detailed in one or more quotes, orders, proposals, or statements of work (each, a "Statement of Work" or "SOW") that we provide to you. Upon mutual agreement to a SOW (achieved either through signing or electronic acceptance by both parties), that SOW will fall under the governance of this Agreement.
Should there be any significant discrepancies between the provisions in a SOW and those in this Agreement, the provisions in the SOW will take precedence, except in cases concerning warranties, limitations of liability, or the termination of this Agreement. For these specific situations, the terms of this Agreement will prevail unless the SOW explicitly states its intention to override the conflicting terms of this Agreement.
2) GENERAL REQUIREMENTS.
a) Environment: Under this Agreement, "Environment" refers to any part of a computer network (whether cloud-based or traditional), computer system, communication systems, audiovisual peripherals, hardware, or devices (virtual or physical) that Big U Computers is responsible for maintaining, monitoring, or operating as outlined in a Statement of Work (SOW). The scope and fees of an SOW are typically based on your needs and the configuration of the Environment at the time the SOW is signed. To prevent delays or adverse effects on our service delivery, and to avoid potential costs associated with correcting issues caused by the client, you are required not to alter, move the Environment, or install any software within the Environment without explicit authorization from Big U Computers.
b) Requirements: All software within the Environment must be genuine, licensed, and you must be able to provide proof of such licensing upon request. If an SOW specifies minimum hardware or software requirements ("Minimum Requirements"), you agree to meet these requirements as a condition for receiving our Services.
c) Updates: Hardware and software updates ("Updates") are provided by third parties, like equipment or software manufacturers, and may be made available to us for installation in the Environment. If an SOW requires, we will follow the manufacturers’ guidelines for Updates installation. However, we do not guarantee the performance of any Update, nor are we liable for any downtime or losses related to the installation or use of an Update. We reserve the right to delay the installation of an Update until we have assessed its compatibility and benefit to the Environment.
d) Third-Party Support: Should a hardware or software issue necessitate vendor or original equipment manufacturer (OEM) support, we may engage with the vendor or OEM on your behalf, passing any associated fees and costs to you. If anticipated fees or costs exceed $100, we will seek your consent before incurring such expenses, except in urgent situations.
e) Advice; Instructions: Occasionally, we may provide advice or instructions regarding the Services, such as upgrading server or hard drive capacity, or replacing outdated equipment. It is crucial that you act on this advice promptly. Failure to do so, resulting in issues like downtime or security risks, absolves us of responsibility. If ignoring our advice makes the provision of Services untenable, we reserve the right to terminate the relevant SOW for cause.
f) Prioritization: Service delivery will be scheduled and prioritized at our discretion, based on what we deem reasonable and necessary.
g) Authorized Contact(s): We will accept directions or consent from personnel or representatives you authorize in an SOW as "Authorized Contacts". If an Authorized Contact is not designated in an SOW, it defaults to the person(s) who signed the SOW or those you have designated to guide us. Changes to Authorized Contacts must be communicated in writing and take effect three business days after we acknowledge receipt, barring urgent circumstances.
h) Insurance: If you receive Big U Computers-owned or licensed equipment or software ("Big U Computers Equipment"), you must obtain and maintain insurance at your expense for its full replacement value, naming Big U Computers as an additional insured. This policy must not be cancelled or altered without prior notice to Big U Computers. Upon request, you must provide proof of insurance and proof of payment for any premiums or due amounts under the policy.
3) FEES; PAYMENT.
You agree to pay the fees outlined in each Statement of Work (SOW). If an SOW does not specify a fee schedule, you will be charged based on our current standard hourly rates. You are liable for all sales taxes, other taxes, and governmental fees related to the Services. Should you be exempt from any taxes, it is your responsibility to provide a valid exemption certificate or equivalent proof of exemption. Additionally, you are responsible for all costs associated with freight, insurance, and taxes, including but not limited to import or export duties, sales, use, value-added, and excise taxes.
a) Schedule: Unless an SOW states otherwise, all undisputed fees must be paid in advance of receiving the Services. For services with recurring payments, the amount will be automatically withdrawn from your designated bank account or charged to your designated credit card on the first business day of each month in which the Services are provided.
b) Nonpayment: Any fees not paid within fifteen (15) days after their due date will accrue interest at the lower rate of either 1.5% per month or the maximum rate allowed by law, calculated from the due date until the date of payment. We reserve the right to suspend Services, either partially or completely, without prior notice if fees are overdue. During any suspension, monthly or recurring charges will continue to accumulate. You must notify us of any disputes regarding fees within ninety (90) days after the service date or the date the invoice was paid, whichever is later; failure to do so will result in the loss of the right to dispute the fees. A re-activation fee may be applied to resume Services after suspension for nonpayment. Timely payment of all fees is critical.
c) Discounts: The fees mentioned in an SOW reflect a discount for payments made through recurring, automated electronic fund transfers (EFT). Payments made by other methods, such as credit card, will incur an additional fee of 4% on the pre-tax total of the invoice.
4) ACCESS.
You grant Big U Computers the unrestricted right to monitor, diagnose, manipulate, communicate with, retrieve information from, and access the Environment around the clock (24×7) to facilitate our provision of Services. It is your obligation to secure, at your expense and before any Services commence, all necessary rights of access, licenses (this includes software licenses), permits, or other authorizations required for Big U Computers to deliver Services within the Environment and, if applicable, at your specified premises, both in physical and virtual capacities.
You must ensure and maintain appropriate and safe environmental conditions at all locations where Services are to be performed. Big U Computers personnel are not obligated to perform any tasks or provide Services in situations that present a risk to safety or health, or require efforts beyond standard industry practices to accomplish.
5) LIMITED WARRANTIES; LIMITATIONS OF LIABILITY.
a) Hardware / Software Purchased Through Big U Computers: Unless specifically stated otherwise in a Statement of Work (SOW), all hardware, software, peripherals, or accessories acquired through Big U Computers ("Third Party Products") are non-refundable once the order has been placed into the delivery queue by the manufacturer or a third-party reseller. Big U Computers will make reasonable efforts to assign, transfer, and facilitate any warranties and third-party service level agreements associated with the Third Party Products to you. However, Big U Computers assumes no liability for the quality, functionality, or operability of any Third Party Products and shall not be deemed as an insurer or guarantor of their performance, uptime, or utility. Unless expressly stated in an SOW, all Third Party Products are provided on an “as is” basis without any warranty between Big U Computers and you, including, but not limited to, implied warranties.
b) Liability Limitations: This section limits liabilities under this Agreement or any SOW and constitutes a key component of our Agreement. You acknowledge that Big U Computers would not have entered into this Agreement without these liability limitations. All Services are provided on an "as is" basis. Neither party shall be liable for indirect, special, exemplary, consequential, or punitive damages, including but not limited to lost revenue, profits (aside from fees owed to us), savings, or any other economic loss related to this Agreement, any SOW, the Services, or due to service delays, even if advised of such potential damages. However, this does not limit reasonable attorney fees awarded to a prevailing party. Except for your obligations regarding payments, indemnification, and attorney fees (outlined elsewhere in this Agreement), a Responsible Party's total liability for any and all claims related to this Agreement, whether in contract, tort, indemnification, or negligence, is strictly limited to the Aggrieved Party's actual direct damages, not exceeding the total fees paid by you to Big U Computers for the specific Service related to the claim(s) during the six (6) months preceding the action's accrual date. This limitation does not apply to damages resulting from a Responsible Party's willful misconduct or gross negligence. Moreover, a Responsible Party's liability will be proportionately reduced if a claim is due to the Aggrieved Party's intentional misconduct or gross negligence.
6) INDEMNIFICATION.
You agree to indemnify, defend, and hold Big U Computers harmless from any losses, damages, costs, expenses, or liabilities, including reasonable attorneys’ fees (collectively, "Damages"), resulting from or related to any breach of this Agreement by you, or any acts or omissions by you in connection with this Agreement. This indemnification obligation does not extend to any Damages arising from Big U Computers' intentional misconduct or malicious acts. Big U Computers retains the right, though not the obligation, to lead the defense and manage the resolution of any claim or action that might invoke this indemnity clause. However, Big U Computers will not settle any claim without your prior written consent, which must not be unreasonably withheld or delayed.
7) TERM; TERMINATION.
This Agreement commences on the Effective Date and will continue until terminated as set forth herein. Each Statement of Work (SOW) will have its own duration and can only be terminated as outlined in this document or as expressly stated in the relevant SOW. The termination of an individual SOW does not, by itself, affect the continuation of this Agreement or the status or progression of any other SOWs between the parties.
a) Termination Without Cause: Neither party may terminate this Agreement without cause if an SOW is currently active. Similarly, an SOW cannot be terminated without cause before its scheduled completion, unless agreed otherwise. If Big U Computers discontinues a service across all customers, it may terminate the relevant SOW without cause with at least 120 days' prior written notice. Termination of an SOW without cause and without Big U Computers' agreement will result in a Termination Fee, as detailed in Section 7(b). If no SOW is active, either party may terminate the Agreement without cause with five (5) days' prior written notice.
b) Termination For Cause: If a party (the "Defaulting Party") materially breaches this Agreement or an SOW, the other party may immediately terminate the Agreement or the relevant SOW for cause. This is conditional upon the non-Defaulting Party notifying the Defaulting Party in writing of the breach and the Defaulting Party failing to remedy the breach within 20 days (or 10 days for non-payment). Termination by Big U Computers for cause, or your termination of an SOW without cause before its end date, entitles Big U Computers to a Termination Fee, equivalent to the fees that would have been paid had the Agreement or SOW continued in effect. If you terminate for cause, you are only responsible for paying for Services properly delivered up to the termination date.
c) Client Activity as a Basis for Termination: If client-supplied equipment or actions cause significant malfunctions requiring remediation by Big U Computers on three or more occasions, or if any conduct by you or your personnel makes it unreasonable to provide Services, Big U Computers may terminate the Agreement or the relevant SOW for cause after 10 days' prior notice. Alternatively, Big U Computers may amend the SOW to exclude problematic elements.
d) Consent: Both parties may mutually agree to terminate an SOW or this Agreement at any time through written consent.
e) Equipment / Software Removal: Upon termination, you must allow Big U Computers access to retrieve any of its equipment or software. Failure to provide access or return equipment in good condition (normal wear excepted) will result in a charge for the full replacement value. You agree not to interfere with any software agents installed by Big U Computers unless directed.
f) Repayment of Discounted Fees: If you received a discount or fee waiver based on a commitment to a minimum service term and the SOW is terminated for cause by Big U Computers or without cause by you, you must repay the waived fees or the difference between discounted and standard rates from the start date to the termination date.
g) Transition; Deletion of Data: Should you request assistance in transitioning away from our services, Big U Computers will provide help, subject to full payment of outstanding fees and compensation at the current hourly rate. Any custom configurations or software developed by Big U Computers are proprietary and will not be disclosed. Unless an SOW states otherwise, Big U Computers is not obligated to store or maintain client data beyond 15 days after Agreement termination. You agree to indemnify Big U Computers against any claims related to data deletion after this period.
8) RESPONSE; REPORTING.
a) Response: Big U Computers guarantees and affirms that the Services will be delivered, and any notifications of errors, outages, alarms, or alerts regarding the Environment will be addressed within the time frames specified in the relevant Statement of Work (SOW) ("Response Time"), except under the following conditions:
i. Scheduled Downtime: Defined as periods, outside of 8:00 AM to 5:00 PM Eastern Time, Monday through Friday, designated by Big U Computers for scheduled maintenance or adjustments to the Environment. We aim to give at least twenty-four (24) hours' notice before any Scheduled Downtime.
ii. Client-Side Downtime: Delays or service deficiencies caused by your actions or omissions will not be Big U Computers' responsibility.
iii. Vendor-Side Downtime: Delays or service deficiencies arising from third-party service providers or vendors are beyond Big U Computers' responsibility.
iv. Remedies; Limitations: If Big U Computers fails to fulfill the service level commitments (excluding the Onboarding Exception, Client-Side Downtime, Vendor-Side Downtime, and force majeure events), and upon your written request, a pro-rated credit will be issued corresponding to the duration of the outage or service failure. Claims for such credits must be submitted within forty-five (45) days following the report of the outage/service failure or receipt of a monthly report indicating such failure. These remedies supersede any other potential claims for service level failures under this Agreement.
b) Onboarding Exception: The initial forty-five (45) days following the start of a SOW are exempt from the Response Time commitments due to potential unanticipated downtime or delays as Big U Computers becomes acquainted with your systems and requirements ("Onboarding Exception").
9) CONFIDENTIALITY.
a) Definition of Confidential Information: For the purposes of this Agreement, "Confidential Information" encompasses all non-public information disclosed to Big U Computers by you. This includes customer data, customer lists, internal documents, and similar proprietary details. Confidential Information does not cover information that: (i) is already public through no fault of Big U Computers, (ii) was developed independently by Big U Computers without use of your information, or (iii) was received lawfully from a third party not bound by confidentiality obligations to you.
b) Use of Confidential Information: Big U Computers commits to maintaining the confidentiality of your information, not disclosing it to any third party without your explicit written consent, except as necessary to meet our obligations under this Agreement.
c) Protection of Confidential Information: Big U Computers will protect your Confidential Information with the same care we use to protect our own sensitive information, which will always meet or exceed a commercially reasonable standard of care. Should any further agreements regarding confidentiality be entered into with you after the Effective Date, the terms demanding greater confidentiality protection will prevail.
d) Compelled Disclosure: Should Big U Computers be required by law (via deposition, subpoena, or similar legal process) to disclose any Confidential Information, we will promptly inform you to allow for the seeking of a protective order or other legal remedies. At your expense, Big U Computers will endeavor to secure such a protective order. If a protective order is not obtained, or you do not waive compliance, Big U Computers may, without breaching this agreement, disclose only the portion of Confidential Information legally required, based on counsel's advice.
e) Business Associate Agreement (BAA): In instances where a BAA is executed between us for handling personal health information, its terms will integrate with this Agreement's confidentiality clauses. In cases of conflict, the terms offering stronger confidentiality protection will take precedence, with the BAA specifically governing privacy and confidentiality disagreements.
10) ADDITIONAL TERMS; THIRD PARTY SERVICES.
a) Compliance: Unless explicitly stated within a Statement of Work (SOW), Big U Computers' Services are not designed to ensure full regulatory compliance for your business or operations. While certain Services might support your compliance efforts, they are not comprehensive compliance solutions and should not be solely relied upon for meeting regulatory requirements.
b) End User License Agreements (EULAs): Some Services may necessitate acceptance of third-party EULAs. By agreeing to this MSA, you authorize Big U Computers to accept EULAs on your behalf. It's important to note that EULAs may present different service levels, warranties, and liability limitations than those in this Agreement. You are bound by such EULAs and must seek enforcement directly from the third-party providers, not Big U Computers. Should a third-party EULA change, Big U Computers retains the right to amend the corresponding SOW to maintain compliance.
c) Third Party Services: Big U Computers may utilize third-party providers for certain Services, which may not always be explicitly identified in an SOW. We reserve the right to change these providers at our discretion, provided the changes do not materially affect the quality of Services under any SOW. Big U Computers is indemnified by you against failures attributed to these third-party providers.
d) Data Loss: Big U Computers is not liable for any data loss, corruption, or unreadability arising from communication errors, equipment failures, or a lack of specified backup or recovery services in an SOW. Our responsibility for data preservation is limited to areas explicitly outlined in an SOW for backup or recovery services.
e) Bring Your Own Device (BYOD): You warrant that Big U Computers is authorized to access all devices connected to the Environment, including personal mobile devices. Devices not connected to the Environment or not recognized under a managed service plan ("Unknown Devices") are not covered by the Services. Big U Computers is not responsible for issues caused by Unknown Devices within the Environment.
f) Equipment: Equipment provided by Big U Computers under an SOW is licensed, not sold or leased, to you. Upon SOW expiration, the license ends, and the equipment must be returned at your expense. Any configurations on Big U Computers equipment are proprietary and may not be altered without our express written consent.
11) OWNERSHIP.
Both parties will retain ownership and/or the right to license all forms of intellectual property currently held by them, including but not limited to works of authorship, patents, trademarks, copyrights, and other types of intellectual property ("Intellectual Property"). Nothing within this Agreement or any Statement of Work (SOW) should be interpreted as transferring or granting any ownership rights or interests in one party's Intellectual Property to the other party.
12) ARBITRATION.
All disputes, claims, or controversies arising from or related to this Agreement, except for actions taken by Big U Computers to collect undisputed fees owed ("Collections"), will be resolved through arbitration. This includes disputes about the arbitration's scope or its applicability. Both parties must mutually agree on an arbitrator. The arbitration process will be overseen by the American Arbitration Association (AAA) unless no AAA arbitrator is available within a 25-mile radius of Big U Computers' office. In such cases, Big U Computers may select an alternative arbitration venue, following that venue's rules for commercial disputes ("Rules"). Should any discrepancies arise between these Rules and the outlined procedures, the latter shall prevail.
The chosen arbitrator will have expertise in contract law, intellectual property, and information technology transactions. Should the parties fail to agree on an arbitrator within 20 days post-arbitration demand, the selected venue will appoint one. The arbitration shall occur at Big U Computers' office, unless an alternative location is agreed upon. The arbitrator will also set the discovery scope, aiming to limit proceedings to the dispute's specific issues and ensuring discovery is conducted accordingly.
Initially, arbitration costs will be equally divided between the parties, and each will cover its own legal fees and expenses. However, the prevailing party in the arbitration is entitled to recover reasonable legal fees and costs.
13) MISCELLANEOUS.
a) Disclosure: You guarantee that no existing law or regulation related to your business will obstruct or limit Big U Computers' ability to provide Services. Should any new regulations or requirements arise that might affect our service delivery or necessitate reporting to authorities, you will promptly inform Big U Computers. This includes obligations under privacy laws like HIPAA, where you must identify protected data before disclosure or access by Big U Computers.
b) Security: Acknowledge that no security system is infallible. Certain advanced malware or intentionally harmful software may bypass industry-standard security measures. Big U Computers does not promise complete detection or removal of all malware, nor recovery of data affected by such security threats. Service scopes defined in SOWs do not typically include recovery of compromised data unless specified.
c) Assignment: This Agreement and any SOW cannot be assigned or transferred without the other party's prior written consent, ensuring binding effect upon permitted assignees or transferees. However, either party may assign this Agreement to a successor entity in the event of a merger, acquisition, or significant asset sale, provided the successor is capable of meeting the obligations herein.
d) Amendment: Amendments or modifications to this Agreement or any SOW require initiation in writing by Big U Computers and acceptance by your authorized representatives to be effective.
e) Time Limitations: Any legal action related to this Agreement or SOWs, aside from nonpayment issues, must be initiated within six months of the cause of action's accrual.
f) Severability: Should any provision of this Agreement or an SOW be deemed invalid or unenforceable, such invalidity will not affect the remainder of the Agreement, which will continue in full force and effect.
g) Collections: In the event of a Collections action to recover undisputed fees owed to Big U Computers, we are entitled to recover all associated costs, including reasonable attorneys' fees.
h) Other Terms: Big U Computers is not bound by any terms not included in a duly executed SOW or explicitly accepted in writing by Big U Computers.
i) No Waiver: Failure to enforce any Agreement term does not constitute a waiver of that term in the future.
j) Merger Clause: This Agreement and all SOWs constitute the complete understanding between the parties, superseding all prior agreements. Representations not included herein are not binding. This does not affect obligations accrued before this Agreement's Effective Date.
k) Force Majeure: Neither party is liable for delays or failures in performance due to events beyond reasonable control, including natural disasters, governmental actions, cyber incidents, or other unforeseen disruptions.
l) Non-Solicitation: Each party (referred to as a "Restricted Party") agrees that during the term of this Agreement and for a two-year period following its termination, it will not directly or indirectly solicit, induce, or influence any employee of the other party to leave or alter their relationship with that party. Violating these terms will result in the Restricted Party paying liquidated damages equal to 50% of the first year's base salary of the affected employee. Any such solicitation will be considered a material breach, allowing the non-violating party the right to immediately terminate this Agreement or any SOW for cause.
m) Survival: Provisions meant to survive the termination or expiration of this Agreement will do so. Unenforceable provisions will be removed without affecting the remainder of the Agreement.
n) Governing Law; Venue: This Agreement and any SOWs are governed by Pennsylvania law, with exclusive jurisdiction and venue in Cumberland County, Pennsylvania for all related disputes.
o) No Third Party Beneficiaries: This Agreement benefits only the signing parties, with no intention to extend rights or enforceability to third parties.
p) Usage in Trade: Trade practices or dealing methods will not modify, interpret, supplement, or alter the terms of this Agreement.
q) Business Day: If a deadline falls on a non-business day in Cumberland County, Pennsylvania, it extends to the next business day.
r) Notices; Writing Requirement: Notices must be sent via U.S. mail, overnight courier, or email, with specific provisions for deemed delivery. Email notices must go to the recipient's last known email address.
s) Independent Contractor: The service provider is an independent contractor, not an employee, partner, or affiliate of the client.
t) Subcontractors: While generally not using subcontractors for onsite services, any subcontracted work will be guaranteed as if performed by the service provider.
u) Data & Service Access: Services provided by persons or involving data storage outside the U.S. may require modifications at additional cost if required by the client.
v) Counterparts: This Agreement, SOWs, and amendments may be executed in counterparts, each deemed original but collectively considered one agreement. Electronic signatures are accepted.