This Master Services Agreement (the “MSA”) is entered into by and between NetworkAntics (“Company”) and Client for good and valuable consideration, receipt and adequacy of which are hereby acknowledged. Company and Client agree to be legally bound as follows:
- ENTIRE AGREEMENT – The terms and conditions of this Master Service Agreement, accompanying Statement of Work (SOW) and any Attachments hereto constitute the entire agreement between the parties with respect to NetworkAntics’s provision of the Service Plan. Each Attachment attached to or referring to this Agreement is deemed a part of this Agreement and incorporated herein wherever reference to it is made. Other than as may be specifically provided in an Attachment cross-referencing by number a Paragraph of this Agreement, the terms set forth in the body of this Agreement shall control over any inconsistent terms set forth in any such document. The terms and conditions of this Agreement govern all documents ( e.g., purchase orders) issued by Client with respect to the Service Plan provided by NetworkAntics and any additional or conflicting terms and conditions contained in any such documents are of no force and effect.
- COMPLAINTS – An appointed representative of Client must make any complaints of misbehavior or negligence concerning NetworkAntics staff directly to the Manager of NetworkAntics. NetworkAntics shall handle all disciplinary issues directly with NetworkAntics staff and shall immediately replace any staff member if requested by Client.
- CONFIDENTIAL INFORMATION –a) Confidential Information shall not include information which is in the public domain or rightfully known by the receiving party at the time disclosed by the disclosing party, or enters the public domain or becomes rightfully known after disclosure by the disclosing party through means other than by a breach of the receiving party’s obligations hereunder.
b) The receiving party shall: (i) not disclose the Confidential Information received by it to any third party; (ii) not use the Confidential Information of the other party except for purposes of this Agreement; and (iii) take steps consistent with its protection of its own confidential information (but in no event exercise less than reasonable care) to prevent unauthorized disclosure of the Confidential Information of the other party. Notwithstanding the foregoing, NetworkAntics may provide access to Client Confidential Information to the extent that Client Confidential Information needs to be accessed by third parties performing services by or on behalf of NetworkAntics if such third-parties are subject to substantially similar non-disclosure obligations imposed by NetworkAntics as those contained herein. Client will ensure that its employees are bound by confidentiality obligations protecting the misuse or disclosure of NetworkAntics Confidential Information that are substantially similar to Client’s obligations hereunder.
c) Client shall not disclose the specific terms and conditions and pricing of this Agreement without the prior written consent of NetworkAntics except that Client may: (i) disclose such terms only as necessary to comply with applicable laws, rules and regulations or as necessary to enforce this Agreement, and (ii) disclose the terms of this Agreement to Client’s employees, officers, directors, auditors, attorneys, bankers or investment bankers as necessary for their rendering of services to Client.
d) Upon termination of this Agreement each party shall within thirty (30) days of the other party’s request return or certify to the destruction of the other party’s Confidential Information.
- INDEMNIFICATION – Each party shall indemnify and hold harmless the other party, its officers, directors, agents and employees, from and against any and all claims, losses, actions, damages, expenses and all other liabilities, including but not limited to reasonable attorneys’ fees arising out of, resulting from, or related to claims for personal injury or property damage (i) arising out of, resulting from, or related to the negligent, reckless, willful, or otherwise tortious acts or omissions of the indemnifying party, its agents, employees or contractors, or (ii) arising out of, resulting from, or related to the indemnifying party’s breach of this Agreement.
- LIMITATION OF LIABILITY – NEITHER PARTY (NOR THE PARTY’S SUPPLIERS OR SUBCONTRACTORS) SHALL BE liable to the other party for any loss of use, interruption of business or any incidental, consequential, special, or indirect damages of any kind, regardless of the form of action, whether in contract, tort (including negligence or strict product liability) or otherwise, even if such party has (or SUCH party’s suppliers or licensors HAVE) been advised of the possibility of such damages in advance. FOR THE AVOIDANCE OF DOUBT, the foregoing limitation shall not be deemed to preclude either party from being indemnified against claims for such damages suffered by a third party. NETWORKANTICS’S (AND NETWORKANTICS’s suppliers’ or licensors’) ENTIRE LIABILITY ARISING OUT OF THIS AGREEMENT, INCLUDING LIABILITY ARISING IN CONTRACT OR IN TORT, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT OF FEES PAID TO NETWORKANTICS FOR SERVICES PROVIDED IN THE SIX MONTH PERIOD IMMEDIATELY PRIOR TO ANY NOTICE OF A CLAIM MADE BY CLIENT.
- NON-INTERFERENCE WITH BUSINESS – Both parties agree that neither party will directly or indirectly, on its own behalf or on the behalf of others hire for work for themselves or for any competing business any person(s) employed or subcontracted by the other, whether or not such employment is pursuant to a written contract or is at will, until such employee or subcontractor has ceased his/her employment with the other party for at least six (6) months. This clause shall be effective for a term of two (2) years from the Termination Date of this Agreement.
- SEVERABILITY; WAIVER – If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. To the extent possible and reasonably practicable, Client and NetworkAntics agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
- NOTICES – Any notice, demand or request with respect to this Agreement shall be in writing and state the name of the Client and the Effective Date of this Agreement and shall be sent by courier service or certified or registered mail, postage prepaid, return receipt requested. Notices shall be effective on the date received. Such notices shall be addressed to the parties at their addresses set forth on the first page. Any party may change its address for such communications by giving notice to the other party in conformity with this Paragraph.
- SURVIVAL – Including this Paragraph, the following provisions of this Agreement shall survive the expiration or termination of this Agreement and/or any Statement of Work: Paragraphs 1 ( “Services”), 2 (“Pricing”), 4 (“Expenses”), 5 (“Fees and Payment Terms”), 6 (“Payment”), 11 (“Confidential Information”), 12 (“Indemnification”), 13 (“Limitation of Liability”), 14 (“Non-Interference with Business”), 15 (“Severability; Waiver”), 16 (“Notices”), 18 (“Choice of Law”), 19 (“Entire Agreement”), 20 (“General”) and 21 (“Definition”).
- CHOICE OF LAW – This Agreement will be governed, construed and interpreted in accordance with the laws of the State of California, without regard to California conflict of law provisions. If any dispute arises between the parties with respect to the matters covered by this Agreement which leads to a proceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
- GENERAL – (i) This Agreement may be executed in separate counterparts, each of which shall be deemed an original and all of which shall be deemed one and the same instrument. (ii) A facsimile of an original signature transmitted to the other party is effective as original. (iii) The Agreement is non-exclusive and NetworkAntics has the right to enter into similar Agreements with other parties during the term of the Agreement or subsequent thereto. (iv) The Paragraph headings used in this Agreement are for convenience of reference only and will not limit or extend the meaning of any provision of this Agreement. (v) The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent or joint venture partner of or with the other and neither party has the right or authority to assume or create any obligation on behalf of the other party. (vi) NetworkAntics will not be liable for delays or errors in its performance or for non-performance due to causes beyond its reasonable control (“Force Majeure Event”). (vii) Client may not assign this Agreement or any rights or obligations hereunder (whether voluntarily or by operation of law) without the prior written consent of NetworkAntics and any attempt to do so will be deemed void. (ix) It is agreed that this is a contract for services and not for the sale of goods. (x) For purposes of construction, this Agreement will be deemed to have been drafted by both parties. By execution hereof, the parties to this Agreement execute it through their duly authorized officers or representatives. Each party warrants that it has full power and authority to enter into and perform under this Agreement and that the person signing this Agreement on behalf of such party has been duly authorized and empowered to enter into this Agreement.
- DEFINITION –
a) “PPC and Analytics Services” means 12 weeks of services rendered by NetworkAntics specifically to investigate and resolve, positively or negatively, Client identified Google Adwords campaign and analytics issues.
b) “Engagement” means the services delivered to Client by Network as a result of a written or verbal request for services under this Agreement. An Engagement is complete when the task requested is complete or when the Client is advised by Network Antics that the task cannot be completed (eg, a hard drive cannot be repaired because it is irretrievably damaged).
c) “Break/Fix Services” means services rendered by NetworkAntics specifically to investigate and resolve, positively or negatively, Client identified IT problems.
d) “Devices” means all items identified as devices on Attachment A to this Agreement and all Pricing Attachments.
e) “Minimum Increments of Service” means the minimum period of time that will be charged for each type of service under each Service Plan as described in Exhibit A .
f) “Managed IT Services” means those services identified at https://www.networkantics.com/san-diego-managed-it-support/managed-it-services-service-level-agreement/ on the Network Antics website.
g) “Risk Compliance Reports” means best effort Policies that apply to the rule or mandate we are providing the assessment for. Procedures discussing specific how-to’s to comply with policies. Finally, Evidence demonstrating your attempts to comply with the rule or mandate. While NetworkAntics is not responsible for your compliance, we provide the following Reports and Supporting Documents once we get our interviews, surveys, and scans completed.