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Master Services Agreement for Services

This MSA is applicable to all engagements between Provider and Clients.  This agreement applies to all clients unless a seperate agreement is executed by the parties.

Master Services Agreement for Services

PROVIDER:                                                                                                                                                          

Thomas Guard LLC   

Libertyville, IL 60048                                                                                                                                          

 

THIS AGREEMENT FOR SERVICES and/or EQUIPMENT (hereinafter “Agreement”) is provided to Thomas Guard LLC Clients

WHEREAS, the Client desires to buy Services and/or Devices from Provider; and

WHEREAS, the parties desire to set forth their agreement as to the terms and conditions relating to such Services.

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows:

Article I. Statements of Work

• The parties may enter into one or more Statements of Work for the provision of Services and/or Equipment to be delivered by Provider to the Client. For each individual engagement, the parties will execute a Statement of Work. Each Statement of Work will refer to and incorporate by reference this Agreement.  In the event of any conflict between this Agreement and a Statement of Work, the Statement of Work will govern. Unless otherwise specifically stated in a Statement of Work, all Services and Equipment provided pursuant to this Agreement will be on a non-exclusive basis.
• Provider will issue to Client on a periodic basis, an invoice for all amounts owed under each Statement of Work. The Client will pay Provider all undisputed invoiced amounts within 10 days after the receipt of the invoice. The Client may not withhold payment of any amounts due and payable under this Agreement or any Statement of Work by reason of any set-off of any claim or dispute with Provider. 
• The Client will pay or reimburse Provider for all taxes, fees or other charges imposed by any local, state or federal authority or any other taxing authority (together with any related interest or penalties due to the fault of the Client) arising out of or relating to this Agreement and any Statements of Work, except for taxes based on Provider’s income.

Article II.  Services

2.1          Provider warrants that the Services will be performed in a commercially reasonable manner and will conform to any service level commitments set forth in the Statement of Work.

2.2          If, within ninety (90) days of the Services being performed, Client discovers a defect in those Services, Provider agrees to re-perform any Services not in compliance with the provided warranties if Provider receives written notice of any such defect within 5 days of its initial observance. 

2.3          Provider shall not commence work in connection with a change request until the Client and Provider approve such change in writing.

2.4          Provider may, as it deems appropriate, use subcontractors for all or any portion of the Services.  Provider will remain primarily responsible for the performance of the Services.

2.5          The Client may not resell any of the Services.

2.6          Notwithstanding anything to the contrary herein, Client shall be and remain always the sole and exclusive owner of Client Data (including any modification, compilation, or derivative work therefrom and all intellectual or industrial property and proprietary rights contained therein or pertaining thereto) and, effective in each case upon the creation of any such items, Provider hereby assigns the same to Client.  Provider is hereby granted a license to use and copy the Client Data solely for purposes of carrying out its duties hereunder during the Term and solely to the extent that Provider requires access to such data to provide the services as contemplated by this Agreement or applicable Statement of Work during the Term. Provider shall not, without Client’s express prior written consent, commercially exploit Client Data, or otherwise adversely affect its integrity, security or confidentiality.

2.7          All Services will be performed utilizing commercially reasonable security measures, including any specified in the applicable Statement of Work. 

 

2.8          Notification Regarding Viruses. The Client and Provider will use all reasonable means to transmit materials which do not contain software viruses, or any other malicious code designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.  However, the Client understands that Provider cannot and does not guarantee or warrant that the networks used to transmit all materials will be free of infections, viruses, worms, or other code that contains contaminating or destructive properties.

 

2.9          Upon termination of any Statement of Work for any reason, Provider shall cooperate reasonably in the orderly wind-down of the Services, ensuring reasonable continuity of personnel during any transition to a third party or in-house provider of Services.  Provider shall provide such transition services for at least ninety (90) days after termination and any such transition services shall be billed on a time and materials basis or on any other fee structure agreed to in writing between the parties. Upon termination of any Statement of Work, the Master Services Agreement and all additions to it, will survive and remain in effect.

 

 

Article III.  Purchase of Equipment

 

3.1          The Client may purchase Equipment from Provider solely pursuant to a Statement of Work.

 

3.2          Title to the Equipment sold to the Client will be free and clear of all liens, claims and encumbrances of any kind and will vest in the Client upon delivery and payment of the full purchase price.

 

3.3          To the extent permitted by the manufacturer, Provider will assign to the Client any available manufacturer’s warranty for the Equipment sold.

 

3.4          Risk of loss, theft, destruction or damage to the Equipment will pass to the Client when the Equipment is delivered to the Client or any of its agents.  Terms of delivery will be set forth in the appropriate Statement of Work.

 

 

 

Article IV.  Equipment Use

 

4.1          Provider may provide Equipment to the Client for use in conjunction with the Services pursuant to a Statement of Work. 

 

4.2          The Client acknowledges that Provider owns the Equipment made available under this Article IV.  The Client’s interest is a possessory interest only, and the Client will not obtain title to such Equipment.

 

4.3          The Client will not permit any additions, improvements, variations, modifications or alterations of any kind to be made to the Equipment without Provider’s prior written consent.

 

4.4          Upon the written request of the Client, Provider will promptly repair, at Provider’s expense, any damaged Equipment unless such Equipment has suffered a Casualty Loss or is damaged because of the gross negligence or willful misconduct of the Client, in which case Provider will promptly repair the damaged Equipment at the Client’s expense.

 

4.5          Within 20 days after the termination of a Statement of Work, the Client will return the Equipment in good working order and condition (ordinary wear and tear excluded). Within a reasonable time after return of the Equipment, Provider will scrub/wipe all data of the Client contained in the Equipment, if any.

 

4.6          The Client agrees to provide to Provider at the Client’s expense the use of and access to the Client offices as shall be reasonably necessary to permit Provider to perform his duties hereunder. In addition, the Client shall make information concerning its business, and its employees, officers and professional advisors available to Provider to the extent reasonably necessary to permit Provider to perform the assigned duties hereunder.

 

4.7          Client shall reimburse Provider for all out-of-pocket costs for creating documentation and deliverables, including photocopying, overnight courier, unusual long-distance telephone, mileage, travel, meals, and overnight lodging expenses reasonably necessary in connection with the performance of this Agreement within two (2) weeks of submitted expense reports.  All other expenses will be mutually agreed upon in advance and either paid for by Client or reimbursed within two (2) weeks to Provider.  Client is responsible for any sales or other tax associated with Services.

 

4.8          The Provider may suggest, recommend or use subcontractors or agents to perform Services.

 

 

Article V.  Intellectual Property

 

• Subject to each party’s obligation of confidentiality hereunder, Provider hereby grants to the Client a non-exclusive, non-transferable, royalty-free license to use the Proprietary Materials in connection with and for the benefit of the Client. Except as expressly set forth herein, Provider retains all rights in the Proprietary Materials.

 

• Provider warrants that the Proprietary Materials, Services, and Equipment do not and will not infringe or otherwise violate any intellectual property rights of a third party including, without limitation, copyrights, patents, trademarks, trade secrets; and no third party has asserted or threatened to assert such rights.

 

• Provider will defend and indemnify the Client against any third-party claim, including settlement amounts, brought against the Client alleging that the Proprietary Materials, Services, or Equipment infringe a copyright, patent or other intellectual property right of a third party. The Client will notify Provider in writing of the claim and provide reasonable cooperation and full authority for Provider to defend or settle the claim, provided that before Provider settles any claim that requires Client to admit liability or make any other adverse admission, pay money, or take (or refrain from taking) any action, Provider will seek Client’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.  Provider will not be responsible or liable for any claim of infringement where the claim arises solely from any information, data or materials provided by the Client.

 

• Unless otherwise provided in a Statement of Work, Provider will be responsible for securing any licenses or other rights necessary for the utilization by the Client of any Third-Party Software to be supplied by Provider under this Agreement and Provider will identify such Third-Party Software in the applicable Statement of Work. The use of Third-Party Software by the Client will be subject to any terms and conditions included therewith.

 

• Provider makes no representation or warranty and accepts no obligation in relation to any Third Party Software to be supplied by Provider to the Client under this Agreement and all warranties, terms, conditions, undertakings and representations of any kind, express or implied, statutory or otherwise relating to Third Party Software including as to the condition, quality, performance, non-infringement, merchantability, satisfactory quality or fitness for the purpose of the Third Party Software or any part thereof, are hereby expressly excluded to the fullest extent permitted by law.

 

• Neither party will use the other party’s trademarks, trade names, service marks, logos, corporate or trade names or other identification without the prior written approval of the other party in each instance.

 

• Each party (including its employees and agents) will use measures as least as strict as they use to protect their own information to provide protection for the other party’s Confidential Information disclosed to it during the negotiation or performance of this Agreement. Without limiting the generality of the foregoing, each party agrees not to (a) use any Confidential Information received from the other party for any purpose except as necessary for purposes of exercising its rights or performing its obligations under this Agreement or (b) disclose, distribute, allow access to, or otherwise make available any Confidential Information received from the other party.  All Confidential Information of the disclosing party will remain, as between the parties, the sole property of the disclosing party.  Upon written request, the receiving party shall destroy or return all Confidential Information and any copies thereof.  The parties agree that, in addition to any other relief allowed in law or equity or in this Agreement, the disclosing party may seek injunctive relief in any court of competent jurisdiction for any breach of this section.  The obligations of confidentiality and non-use contained herein will survive the termination or expiration of this Agreement. 

 

 

Article VI.  Term

 

6.1          Each Statement of Work is an independent agreement between the parties and termination or expiration of one Statement of Work will not result in the termination of any other Statement of Work, and this Agreement will remain in effect until such time as all Statements of Work associated with this Agreement terminate.

 

6.2          Unless otherwise specified in a Statement of Work, each Statement of Work will take effect upon execution by both parties and will continue until the first anniversary of the date thereof and, unless otherwise specified in the Statement of Work, will thereafter be extended for successive one-year periods unless either party delivers a notice of termination at least 60 days prior to the then-scheduled date of termination.

 

6.3          The occurrence of any one or more of the following constitutes an “Event of Default” under the applicable Statement of Work:

 

• Failure of the Client to pay any undisputed amounts when due if that failure continues for 30 days after receipt of written notice.

 

• Failure of a party to perform any other material term or condition of this Agreement or an applicable Statement of Work if that failure continues for 90 days after receipt of written notice.

 

• An assignment by a party for the benefit of creditors, the failure by a party to generally pay its debts when due, the insolvency of a party, the filing by a party or the filing against a party of any petition under any bankruptcy or insolvency law or for the appointment of a trustee or other officer with similar powers, the adjudication of a party as insolvent, the liquidation of a party, or the taking of any action for the purpose of the foregoing.

 

6.4          Upon the occurrence of an Event of Default with respect to a Statement of Work, the non-defaulting party may elect (without waiving any other rights or remedies specified in this Agreement, the Statement of Work or available at law or in equity) to terminate the applicable Statement of Work.

 

6.5          Client shall also have the right to terminate the applicable Statement of Work upon the occurrence of any of the following:  a) upon thirty (30) days prior written notice if Provider refuses to carry out a reasonable instruction, within the scope of Services, of Client after reasonable time for doing so; (b) upon thirty (30) days prior written notice if Provider fails to complete a milestone specified in a Statement of Work by the specified time and the quality or continuity of the services is reasonably likely to be materially, adversely affected as a result.

 

Article VII.  General

 

7.1          Commencing on the date of this Agreement and continuing for a period of one year after its expiration or termination, (i) the Client will not solicit for employment or hire any of Provider’s employees, if any, who are or were located at a client-controlled facility without the prior written consent of Provider and (ii) Provider will not solicit for employment or hire any of Client’s employees that were involved in Provider’s provision of Services.  Both parties are entitled to specifically enforce this Section.

 

7.2          Each party will indemnify and hold the other party and its employees and agents, harmless against all claims, liabilities, losses, damages, judgments and causes of action relating to bodily injury, including wrongful death, or damage to real or tangible personal property (except for loss of data) arising out of the intentional or grossly negligent acts or grossly negligent omissions of the indemnifying party during the performance of a Statement of Work. The indemnifying party, however, will not be responsible for injury attributed to the intentional or negligent acts or negligent omissions of the indemnified party, its employees or agents.

 

7.3          Provider will indemnity and hold Client and its employees and agents, harmless against all claims, liabilities, losses, damages, judgments and causes of action resulting in whole or in part from Provider’s performance of the Services.

 

7.4          Either party may assign this Agreement to affiliates (provided that the original party remains primarily liable) and Client may assign this Agreement in connection with a merger, consolidation, or sale of substantially all of Client’s business or assets, in each case without the consent of the other party. In such case the acquiring entity agrees to all terms and conditions contained in this Agreement through the applicable term.  Other than as provided herein, neither party will otherwise assign this Agreement without first obtaining the other party’s consent, which will not unreasonably be withheld. This Agreement is binding upon the parties and their successors and permitted assigns.

 

7.5       EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR AN APPLICABLE STATEMENT OF WORK, PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

 

7.6          Except for a party’s gross negligence or willful misconduct, or Provider’s breaches of confidentiality or data security, under no circumstances will either party be liable for special, incidental, consequential or punitive damages (including lost profits or savings) even if such party has been advised of the possibility of such damages.  Except for Provider’s gross negligence, willful misconduct, breaches of confidentiality or data security, and indemnity obligations, Provider’s maximum cumulative liability relative to all claims and liabilities, including those with respect to direct damages, whether or not insured, will not exceed the cost of services or equipment under the Statement of Work giving rise to the claim or liability for the prior one-year period. Client acknowledges and accepts that Provider will make recommendations that are in the best interest of the Client to implement or create a statement of work authorizing and compensating Provider to implement. The Provider will not be responsible for any resulting losses, defects and damages to property or information.

 

7.7          Each party, both as of the date hereof and again as of the date of each Statement of Work, represents to the other party that: (a) it has adequate  power to enter into and perform this Agreement; (b) the execution, delivery and performance of this Agreement is duly authorized by all necessary corporate action, is not in conflict with its organizational documents, and will not constitute a breach of or default under any agreement by which it is bound; and (c) no consent or approval or action of any nature is necessary for execution, delivery or performance of this Agreement.

 

7.8          Each party is an independent contractor and has no authority to bind or commit the other party. Nothing in this Agreement or any Statement of Work will be deemed or construed to create a joint venture, partnership or agency relationship between the parties.

 

7.9          The waiver by either party of a breach of any provision of this Agreement will not be deemed to be a waiver of any subsequent breach. The invalidity, in whole or in part, of any provision of this Agreement will not affect the validity of the remaining provisions.

 

7.10       Any notice, request or other communication relating to this Agreement, or any Statement of Work must be given in writing and will be deemed received upon the earlier of actual receipt or three business days after mailed postage prepaid by regular or airmail to the address set forth below or, one business day after such notice is sent by courier, overnight delivery service or facsimile transmission, or upon actual receipt for electronic (email) transmission. A facsimile or electronic (email) counterpart of any notice may be delivered to the parties and each party adopts its signature on the facsimile or email as its original signature and agrees that the facsimile or email will have the same effect as if the document had been signed and delivered by mail or in person.  Notices to Client shall be made to Thomas Gottfreid.

 

7.11       No third party is intended to be, or will be construed to be, a beneficiary of any provision of this Agreement or any Statement of Work or have any right to enforce any of its provisions or to pursue any remedy for its breach.

 

7.12       Those terms and conditions that would, by their meaning or intent, survive the expiration or termination of any Statement of Work will so survive.

 

7.13       This Agreement, including each Statement of Work, represents the entire agreement between the parties and supersedes all oral or other written agreements or understandings between the parties concerning the subject matter hereof. This Agreement and each Statement of Work may not be modified unless in writing and signed by the party against whom enforcement of the modification is sought. Each Statement of Work constitutes a new agreement between the parties.

 

7.14       This Agreement and each Statement of Work is governed by the laws of the State of Illinois without regard to its conflict of law’s provisions.  All actions and proceedings arising out of or related to the Agreement may be brought only in a state or federal court located in Lake County, Illinois, and the parties hereby consent to such venue and to the exclusive jurisdiction of such courts.

 

7.15       Neither party will be responsible for or liable for any loss or damage resulting from any nonperformance on account of any cause that is beyond the reasonable control of the party requesting to be excused from its performance under this Agreement or any Statement of Work (excluding, however, the inability of such party to make any payments due hereunder), including those arising out of acts of God, fires, wars, national emergency, civil disturbances, labor disturbances, equipment or facility breakdown, degradation of telephone or other means of communication services or utility outages.

 

 

 

Article VIII. Definitions

 

“Affiliate” means any entity controlling, controlled by or under common control with Client, where “control” means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies or operation of an entity through ownership of voting securities, other ownership interest, contractual agreement, or otherwise.

 

“Casualty Loss” means that the Equipment has suffered irreparable damage or destruction or has otherwise been irretrievably lost or stolen.

 

“Confidential Information” means, with respect to a party, all oral or written information of a business, technical or economic nature that gives that party some competitive business advantage or the opportunity of obtaining such advantage, or the disclosure of which could be detrimental to the interests of that party, including names of current or potential customers, business plans, financial information, product plans, products, services, processes, methodologies, test results or data, software, and other proprietary information or materials.  “Confidential Information” does not include information that:  (a) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving party hereunder; (b) was previously known to the receiving party as evidenced by its written records; (c) is rightly received by the receiving party from a third party who is not under an obligation of confidentiality; or (d) is required to be disclosed by the receiving party pursuant to compulsory legal process, provided that notice of the required disclosure is provided to the disclosing party so that it may seek a protective order.

 

“Client Data” means all data related to Client, including data on databases, or in records, files, reports and forms, that may be received, computed, developed, used, or stored by Provider for Client under the Agreement.

 

“Equipment” means all tangible personal property sold, licensed, or made available by Provider under this Agreement or any Statement of Work, together with all replacements and component parts.

 

“Fee” means all fees associated with Services as set forth in each Statement of Work.

 

“Proprietary Materials” means all inventions, products, methodologies, software, documentation and other written materials (including all enhancements and modifications thereto) developed by Provider and supplied to the Client in connection with the provision of Services or Equipment under this Agreement, including any intellectual property rights therein.  “Proprietary Materials” does not include materials developed by third parties (including Third Party Software), whether such materials are supplied by Provider separately or as part of a package or bundle of materials or services to the Client. 

 

“Services” means the services offered by Provider that are described in a Statement of Work.

 

“Third Party Software” means any application program, database, operating system or other software product, including any intellectual property rights therein, developed or owned by third parties (including open-source software) that are supplied by Provider to the Client in connection with the provision of Services or Equipment under this Agreement.

End of MSA