Master Services Agreement
This Master Services Agreement ("MSA") is incorporated into and made a part of that specific Statement of Work (the "SOW") entered into by and between OutTask Inc., or ("OutTask"), a California Corporation, and the client identified in the SOW ("Client," and the "Parties" together). The SOW and this Master Services Agreement are collectively referred to in these MSA and the SOW as the "Agreement." This Master Services Agreement is deemed to be first entered into as of the effective date of the SOW ("Effective Date"). So, except as otherwise expressly provided in this MSA, all defined terms shall have the meanings ascribed to them in the SOW. The client desires for OutTask, an independent contractor, to provide information technology support services as described in more detail in the SOW in accordance with the terms and conditions of this Master Services Agreement.
Section 1: Engagement and Scope of Services.
A. Client hereby engages OutTask and OutTask agrees to provide services under this Agreement (collectively, the “Services”), as described in more detail in the MSA. Such services may include, but may not be limited to: (a) services for the client related to the client’s business technologies as may be mutually agreed by the parties as specifically detailed and limited in the MSA (collectively the “Managed Services”); (b) one-time installation and setup services (the “Setup Services”); and (c) any additional services to the standard service offering as set forth in the SOW. Services provided outside of the described Managed Services or Setup Services are considered to be out of scope (the “Out of Scope Services”) and are billed as described below. The Managed Services and the Setup Services shall commence following the later of (x) the date specified in the SOW, or (y) five (5) days following the satisfaction of the following conditions: (i) full execution and delivery by both parties of an SOW; and (ii) the satisfaction of Initial Payment Obligations as described below (“Commencement Date”).
B. Client agrees and understands that OutTask may use others than its own employees to provide any services to the client (each such subcontractor or other third parties, a “Permitted Subcontractor”). Each Permitted Subcontractor shall be bound in writing by the confidentiality provisions of this Master Services Agreement, and except to the extent a Permitted Subcontractor has entered into a direct contract with the client, OutTask is responsible for the payment of its compensation. Except as otherwise provided in this Master Services Agreement, OutTask shall be responsible for the performance of each such Permitted Subcontractor and its employees.
C. Client agrees to pay the following as a contingency to the effectiveness of this agreement: (a) payment of the Set-Up Fee as described in the SOW; and (b) one payment of the Monthly Cost, also described in the SOW (collectively the “Initial Payment Obligations”).
Section 2: Term and Termination.
A. This Agreement shall commence as of the Effective Date and shall continue thereafter for the period described in the SOW (the “Initial Term”) unless sooner terminated pursuant to this Section. Upon expiration of the initial term, this agreement shall automatically renew for an additional one (1) month terms unless a party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”). If the Term is renewed for one or more Renewal Terms, the terms and conditions of this Master Services Agreement during each Renewal Term shall be the same as the Master Services Agreement in effect immediately prior to such renewal, subject to any change in fees in accordance with Section 3. If either Party provides timely notice of non renewal, then this Master Services Agreement shall terminate on the expiration of the then-current Term, unless sooner terminated as provided in this Section, and the provisions of Section 3 shall apply.
B. This Master Services Agreement may be terminated by either party immediately for cause upon written notice, if the other party does any of the following (each a “cause”): (a) breaches any material term or condition of this Master Services Agreement and fails to remedy such breach within 10 days of receipt of a written notice describing such breach; (b) terminates or suspends its business operations, unless it is succeeded by an assignee permitted under the terms of this Master Services Agreement; (c) exhibits unprofessional behavior (for example, verbally abusive, unprofessional language in emails or other communications, and any other behavior that would generally be considered unprofessional) or (d) resolves to appoint an administrator, provisional liquidator or liquidator, takes advantage of any statute for the relief of insolvent debtors, becomes insolvent or otherwise unable to pay its debts when due, makes a general assignment, composition or arrangement for the benefit of its creditors, files a petition in bankruptcy, seeks re-organization, or has filed against it a petition for bankruptcy which is not discharged within sixty (60) days, has a receiver appointed over any of its assets; or institutes or is subject to any proceedings for liquidation or winding up.
C. OutTask, in its sole discretion, may terminate this Agreement, in whole or in part, at any time, without cause, by providing at least ninety (90) days prior written notice to the client.
D. The “Termination Date” for any termination of this Agreement shall be on the date of any of the foregoing events if termination is immediate, or following any notice and cure period if applicable, or following any notice period, or as agreed by mutual written consent; provided, however, that where the term of this Agreement is or has converted to, a month-to-month term, and the client is permitted to terminate upon 30 days’ notice, or if the Agreement is terminated for any other reason, then the Termination Date shall occur on the last day of the month in which the 30-day notice period expires.
E. If OutTask terminates this Agreement for Cause, or if Client terminates this Agreement for a reason other than Cause prior to the end of the Term or any subsequent Renewal Term, in addition to any other amounts due to OutTask under the Agreement, Client shall promptly pay to OutTask upon invoice an amount equal to one hundred percent (100%) of the fees due during the remaining portion of the Initial Term or any Renewal Term (the “Termination Fee”) as liquidated damages, which amount the Parties agree is a reasonable sum considering all of the circumstance existing on the Effective Date, including the relationship of the sum to the range of the harm to OutTask that reasonably could be anticipated and the anticipation that proof of actual damages would be impracticable or extremely difficult.
F. In addition to the termination fee, OutTask will provide certain assistance to the client for work associated with the transition of Managed Services to a third party, billed at the rate specified in the Scope of Services for out of scope services (the “Transition Services”). Provided, however, that OutTask’s responsibilities under this Agreement shall immediately cease upon OutTask’s delivery to any such third party of Client’s technology usernames, logins, passwords, and access to secured systems, both for hardware-based (e.g., Firewall) or software-based (e.g., SaaS/cloud-based solution), as well as Client’s written and digital documentation (collectively “Client Technology Admin Logins”). Once the Client Technology Admin Logins are transferred, OutTask’s provision of any further transition services will be provided at OutTask’s sole discretion. The client controls the timing of the transition to a third party, but that transition period does not impact the obligation of the client to continue to pay OutTask through to the end of the Term.
G. Upon expiration or termination of this Agreement for any reason, OutTask shall be permitted to promptly remove any of its equipment, materials, and software solutions located at the client’s premises and on the client’s computers. To the extent Client removes such software solutions from its own computers, it agrees to provide OutTask, on a weekly basis, with a list of computers from which the OutTask software has been removed, with sufficient information to enable OutTask to identify which computer such software was removed from, including without limitation the name of the Client user. The client acknowledges that the removal reports are integral to a termination, and without them, the Agreement, if ostensibly terminated by the client, shall not be deemed duly terminated, in whole or in part, unless and until such reports are delivered to OutTask. Each party shall (a) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other party’s Confidential Information (as defined below) (except that OutTask may retain such documents and materials until payment in full of all fees and costs due and owing to OutTask), (b) permanently delete all of the other party’s Confidential Information from its computer systems, and (c) certify in writing to the other party that it has complied with the requirements of this clause.
Section 3: Fees and Payments.
A. In consideration of the provision of the services by OutTask and the rights granted to the client under this Master Services Agreement, the client shall pay the fees set forth in the applicable SOW (the “Fee”).
B. Where services are provided for (a) a fixed price, (b) a fee based on the number of users/devices, or (c) a fee for recurring software or other solutions, the amount of such fee shall be the amount stated in the SOW.
C. Where OutTask provides Out of Scope Services, (a) the fees payable for such services shall be calculated in accordance with OutTask’s daily or hourly fee rates set forth in the SOW; (b) the client shall reimburse OutTask, at OutTask’s actual cost, for any reasonable travel, along with materials, machinery, equipment, and third-party services (collectively, “Materials”) reasonably necessary for the provision of the Out of Scope Services (OutTask shall obtain Client’s written consent prior to the incurrence of travel expenses in excess of $100.00 and the purchase of Materials, which consent shall not be unreasonably withheld, conditioned or delayed); and (c) OutTask shall issue invoices to the client monthly in arrears for its fees for time and materials for such Out of Scope services, together with a breakdown of any such time and Materials.
D. OutTask shall issue invoices for any and all fee structures at the client’s email address set forth below in accordance with the terms of this section.
E. Invoices for Fees shall be sent on the fifteenth (15) day of the month prior to the month in which services are to be provided. In the case of Out of Scope Services, OutTask shall issue such invoices promptly following the month in which such services or materials are incurred.
F. All invoices, regardless of the fee structure, are Net 15. All late payments are subject to a finance charge of the lesser of 1.5% per month or the maximum amount permitted under applicable law on all balances past due, along with all of OutTask’s fees and costs, including attorney fees, incurred in connection with its collection of any such amounts.
G. All payments hereunder (each a “payment”) shall be in US dollars and made in accordance with this section. client shall be responsible for all sales, use, and excise taxes, as well as any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by the Client hereunder. Any such taxes, duties, and charges currently assessed, or which may be assessed in the future, that are applicable to the Services are for Client’s account, and Client hereby agrees to pay such taxes; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, OutTask’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
H. Services may be suspended if Payment is not received within ten (10) days following notice to Client. In the event OutTask abates Services for a late Payment of any kind, and does not otherwise terminate the Agreement, OutTask will resume the Services on the next business day of receipt of Payment from Client for all past due amounts, and interest if applicable, if such Payment is received by 1:00 pm PT.
I. Unless otherwise agreed to by OutTask, the client will register payment information on the OutTask payment portal (the “Payment Portal”) and pay for services and products via ACH (Automated Clearing House, i.e., automatic bank account debit) or credit card (Visa, Mastercard, AMEX, or Discover) using OutTask’s payment portal. Payments made via credit card are subject to a 4% surcharge. Accounts on the Payment Portal are subject to be automatically paid on the applicable due date. Payments made by any method other than using the Payment Portal will be subject to an administrative processing fee of $50.00 per payment.
J. OutTask reserves the right, without advance notice, to modify the fees chargeable under the SOW to reflect any inflationary or cost-of-living/doing-business increases (“Adjusted Cost”), including up to a 4% increase per each term. The Adjusted Cost shall be measured during the period from the Effective Date up until the beginning of any Term, and then from the date of the start of a Renewal Term to the beginning of the next Renewal Term. A downward change in inflation or cost of living shall not create a decrease in the Adjusted Cost. Any cost of living increases not reflected from time to time shall not be “banked”; OutTask agrees that any such increases not implemented are waived.
Section 4: Client Obligations
A. Client shall: (a) cooperate with OutTask in all matters relating to the Services and appoint a Client employee to serve as the primary contact with respect to this Master Services Agreement and who will have the authority to act on behalf of Client with respect to matters pertaining to this Master Services Agreement (the “Client Contract Manager”); (b) provide such access to Client’s premises and such office accommodation and other facilities as may reasonably be requested by OutTask, for the purposes of performing the Services and each Project; (c) respond promptly to any OutTask request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for OutTask to perform Services in accordance with the requirements of this Master Services Agreement but no less than in accordance with OutTask’s internal quality standards; (d) provide such materials and/or information as OutTask may request in order to carry out the Services in a timely manner, and ensure that it is complete and accurate in all material respects (including the maintenance and preservation of all Client Technology Admin Logins); (e) ensure that all of its equipment is in good working order and suitable for the purposes for which it is used and conforms to all relevant legal or industry standards or requirements, abide by terms of any warranty issued by any manufacturer of such equipment and related software subject to the Services, and keep in working order all files, directories, and code associated with any website controlled by Client; (f) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services, the installation of any equipment by OutTask, the use of materials supplied by Client, and the use of its equipment, in all cases before the date on which the Services are to start; (g) except as otherwise agreed to in advance in writing by OutTask, to refrain from making and to take all actions reasonable necessary to prevent any third party from making any alterations to any hardware or software subject to the Services; (h) to use commercially reasonable efforts to notify OutTask of any operational or other errors or problems with regard to any hardware or software subject to the Services and not attempt to repair any such error or other problem and to maintain reasonable and appropriate levels of physical and electronic security and protection from all environmental or physical perils, loss of data and/or any harmful or malicious electronic files; (i) to ensure its operations, including those affected by the Services, comply with all laws and regulations, including those relating to data security, privacy, copyright and/or other intellectual property rights; (j) to perform all updates on hardware or software subject to the Services in a timely manner and in accordance with the instructions provided to Client by the manufacturer in connection with such updates; and (k) to comply fully with all reasonable specifications, rules, regulations and policies governing the Services provided to Client by OutTask.
B. Without limiting the generality of the foregoing, Client agrees and understands that it alone, and not OutTask, is responsible for Client’s own compliance of all applicable federal, state, and local laws and regulations, foreign and domestic, including all confidentiality and security requirements, and any and all such requirement of the Gramm-Leach-Bliley Act, USA Patriot Act (or similar law, rule or regulation, VISA, MasterCard, Discover, and/or other networks.
C. Client acknowledges that OutTask will support only computers, network-attached devices, or other technology (“Tech”) I) of modern standards, ii) still supported by the manufacturer, and iii) with an enforceable and paid-up service contract or warranty in place (collectively “In Compliance”). If any Tech is found not to be In Compliance, or if any Tech (as the case may be) is found to be operating with specs less than Intel i7 processor, 16GB RAM, and SSD after the Effective Date (or such other improved specs as OutTask may advise Client from time to time), Client agrees that such tech is upgraded, or issues are remedied, within 90 days of notice from OutTask. Client’s lack of compliance with the terms of this Section 4(C) will be considered a material breach of this Agreement and an effective termination for which the Termination Fee will become due and promptly payable.
Section 5: Confidentiality
The Receiving Party agrees: (a) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its officers, employees, consultants, and legal advisors who have a “need to know”, who have been apprised of this restriction, and who are themselves bound by non-disclosure obligations at least as restrictive as those set forth in this Section; (b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations under the agreement, and (c) to immediately notify the disclosing party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party. “Disclosing Party” means a party that discloses Confidential Information under this Master Services Agreement. “Receiving Party” means a party that receives Confidential Information under this Master Services Agreement. “Confidential Information” means any information that is treated as confidential by a party, including but not limited to all non-public information about its business affairs, products or services, intellectual property rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, marked, designated, or otherwise identified as “confidential”.
Section 6: Indemnification
Each Party agrees to indemnify, defend and hold harmless the other Party, its affiliates, and their respective directors, officers, agents, employees, members, subsidiaries and successors in interest from and against any and all claims, damages, liabilities, costs, and expenses, including, but not limited to, reasonable attorneys’ fees and all related costs and expenses incurred as a result of any claim, demand, judgment, or adjudication brought against the Party to be indemnified (each, a “Claim”) related to or arising from, (a) any breach by the indemnifying party of the Agreement, (b) any infringement by the indemnifying party of any third Party’s intellectual property rights, including, but not limited to copyrights, trademarks, trade secrets or patents, except to the extent that any of the foregoing arises from the fraud, gross negligence or willful misconduct of the Party seeking such indemnification.
Section 7: Representations and Warranties; Limitations on Warranties and Liability.
OutTask warrants that the Services will be performed in a workmanlike and professional manner by qualified personnel, consistent with industry standards, and in compliance with this SOW, and in compliance with all laws and regulations (including those relating to security, privacy, copyright, and/or other intellectual property rights) with respect to the Services OutTask provides.
OTHER THAN AS EXPRESSLY SET FORTH IN THIS MASTER SERVICES AGREEMENT, OutTask MAKES NO GUARANTEES OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE (INCLUDING, BUT NOT LIMITED TO, CLIENT’S COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS RELATING TO DATA PRIVACY AND/OR SECURITY), MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, OR TITLE/NON-INFRINGEMENT AND ALL SUCH WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED. IN NO EVENT SHALL OUTTASK BE LIABLE TO CLIENT IN ANY WAY UNDER THE TERMS OF THIS MASTER SERVICES AGREEMENT OR AS A RESULT OF THE SERVICES, FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES; NOR FOR ANY CLAIM BY CLIENT OR BY ANY THIRD PARTY UNDER ANY THEORY OF LIABILITY, OR FOR ANY LOSS OF DATA, IN EXCESS OF THREE (3) TIMES THE AMOUNTS ACTUALLY PAID TO OutTask BY CLIENT AS FEES UNDER THIS MASTER SERVICES AGREEMENT DURING THE THEN CURRENT TERM, EXCEPT FOR THE FRAUD, GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF OUTTASK, ANY BREACH OF OUTTASK CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND ANY INFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS BY OUTTASK.
THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL IN THEIR ESSENTIAL PURPOSE. OutTask MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD-PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES, AND IN NO EVENT SHALL OutTask BE LIABLE TO CLIENT FOR ANY SERVICES RENDERED BY ANY THIRD PARTY BEFORE, DURING OR AFTER THE TERM OF THIS MASTER SERVICES AGREEMENT, EXCEPT TO THE EXTENT SUCH THIRD PARTY WAS PERFORMING SUCH SERVICES UNDER THE DIRECTION OR SUPERVISION OF OUTTASK.
Section 8: No Solicitation.
During the Term of this Agreement, and for a period of twelve (12) months thereafter, Client agrees not to (and not attempt to) solicit or recruit, or in any way interfere with the relationship between OutTask and any employee or Permitted Subcontractor another contractors without the prior written consent of the President or Chief Executive Officer of OutTask. During the Term of this Master Services Agreement and for a period of twelve (12) months thereafter, OutTask agrees that it will not (and will not attempt to) solicit or recruit, or in any way interfere with the relationship between Client and any of its employees or individual independent contractors in any capacity whatsoever without the written consent from an executive officer of Client. Each Party acknowledges and agrees that the terms of this section are reasonable and fair given the unique and substantial investments of time and other resources each Party has made, and that should either Party violate the terms of this section, that violation shall constitute unfair competition.
Section 9: Independent Contractors.
OutTask is an independent contractor and is not an agent or employee of, and has no authority to bind, Client, by contract or otherwise. Although OutTask may perform the Services under the general direction of the Client, OutTask will determine, in OutTask’s sole discretion, the manner and means by which the Services are accomplished, subject to the requirement that OutTask will at all times comply with applicable laws and with Clients’ reasonable instructions. OutTask reserves the right to determine, in its sole discretion, if a request by Client can be addressed remotely, and if so, may choose to do so. It is not the intention of this Agreement or of the Parties to confer any third-party beneficiary rights of action upon any third party or entity whatsoever, and nothing in this Master Services Agreements will be construed so as to confer upon any third party or entity other than the Parties a right of action under this Master Services Agreement or in any other manner whatsoever. OutTask will be solely responsible, and accepts exclusive liability, for complying with all applicable federal, state, and local laws governing independent contractors, including obligations such as filing of tax returns, and payment of taxes, social security, disability, and other contributions based on OutTask’s performance of the Services and the fees paid to OutTask, its agents or employees under this Master Services Agreement, as well as all penalties and interest related thereto.
Section 10: Insurance.
At all times during the Term, and for a period of three years thereafter, (a) Client shall procure and maintain, at its sole cost and expense, with proof of the same to OutTask upon request, commercial general liability and cyber liability insurance with limits no less than $1,000,000 per occurrence and $2,000,000 in the aggregate, including cyber liability, bodily injury and property damage, which policy will include contractual liability coverage insuring the activities of OutTask under this Master Services Agreement; and (b) OutTask shall procure and maintain, at its sole cost and expense at least the following types and amounts of insurance coverage with proof of the same to Client upon request: (i) commercial general liability and cyber liability insurance with limits no less than $1,000,000 per occurrence and $2,000,000 in the aggregate, including cyber liability, bodily injury and property damage, which policy will include contractual liability coverage insuring the activities of OutTask under this Master Services Agreement; (ii) worker’s compensation with limits no less than the greater of (x) $1,000,000, or (y) the minimum amount required by applicable law; and (iii) errors and omissions and professional liability with limits no less than $1,000,000 per occurrence and $1,000,000 in the aggregate.
Section 11: Force Majeure.
Each of the Parties shall be excused from delays in performing or from failing to perform its obligations under this Master Services Agreement if and to the extent the delays or failures result from any event that prevents the affected Party from performing its obligations under this Master Services Agreement and that is beyond the reasonable control of, and not the indirect or direct result of the fault of or caused by, such party and such affected party has taken all reasonable precautions and measures in order to prevent or avoid such event or mitigate the effect of such event on such affected Party’s ability to perform its obligations under this Master Services Agreement and which by the exercise of due diligence it has been unable to overcome (a “Force Majeure Event”). Subject to the satisfaction of the foregoing conditions, a Force Majeure Event may include, but is not limited to: acts of God or of the public enemy; U.S. or foreign governmental actions; strikes; utility interruption or failure; fire; flood; epidemics and pandemics; and freight embargoes. Economic hardship of either Party shall not constitute a force majeure event under this Master Services Agreement. In every instance of a Force Majeure Event, (i) the suspension of performance shall be of no greater scope and of no longer duration than is necessarily caused by the Force Majeure Event and required by any remedial measures, (ii) no obligations of any Party that arose before the occurrence of such causes shall be excused as the result of the occurrence, (iii) each Party shall use commercially reasonable efforts to remedy its inability to perform and mitigate the effects of the Force Majeure Event, and (iv) the non-performing Party shall keep the other Party reasonably informed of its progress toward overcoming the Force Majeure Event. If the performance by either Party of its obligations under this Master Services Agreement is affected by any Force Majeure Event, such Party shall notify the other Party in writing within ten (10) business days after the initial occurrence of the claimed Force Majeure Event of the nature and extent thereof. When the claiming Party is able to resume the performance of its obligations under this Master Services Agreement, it shall give the other Party prompt notice to that effect.
Section 12: Audit Rights.
During the Term, OutTask will have the right to audit and copy all records of Client relating to any of Client’s obligations under this Master Services Agreement, including the number of “Users” of Services hereunder. In the event any such audit discloses a breach of this Master Services Agreement by Client or its employees or agents (which will include, without limitation, any use by Client of Services in excess of the restrictions set forth in this Agreement), Client will, in addition to such other rights and remedies as may be available to OutTask as the result of such breach, pay or cause to be paid to OutTask any fee amounts that may be owed for Client’s usage of Services in excess of the rights granted hereunder, as well as the full cost of such audit and related expenses, including printing, copy and scan charges arising directly as a result of such audit. Client agrees to maintain and adequately its records for a period of four (4) years following the end of the Term and agrees to make same available to OutTask or its agents and representatives in the event of litigation or arbitration between the parties.
Section 13: Client Cyber Security.
The client understands and agrees that data loss or network failures may occur, whether or not foreseeable. In order to reduce the likelihood of a network failure, Client must maintain proper security for its computer and information system including software and hardware updates. Client will adhere to software and hardware updates and maintain specific security standards, policies, procedures set forth by the NIST Cybersecurity Framework available at https://www.nist.gov/cyberframework. It is understood that within the Services provided it is not the intent, nor does OutTask provide any type of internet security monitoring, cyber security monitoring, cyber terrorism monitoring, or other cyber threats for Client unless otherwise specified in the SOW or other contract documents. As cyber threats are always evolving, it is strongly recommended that Client engage the services of a cyber protection third-party vendor to monitor the cyber controls and cyber activities in Client’s system.
Section 14: General Terms.
A. OutTask works constantly to improve its services and develop new features to make the Managed Services better. As a result, OutTask may need to update this Master Services Agreement from time to time to accurately reflect its current Managed Services and practices. OutTask will notify Client before it makes material changes to this Master Services Agreement and give Client an opportunity to review and object to them before they go into effect. Client will have fifteen (15) calendar days to object to any such update, and where such objection is received, Client will not be bound by the updated Master Services Agreement until and unless the parties agree in writing. Once any updated Master Services Agreement are in effect, the Client will be bound by them.
B. This Agreement may not be assigned or transferred, in whole or in part, by either Party without the prior written consent of the other party. However, OutTask may transfer or assign this Agreement, in whole or in part, without the prior written consent of Client, to an Affiliate, or in connection with a merger, consolidation, or a sale or transfer of all or substantially all of the assets to which this Agreement relates, provided that all obligations of OutTask are assumed by the assignee. Notwithstanding the foregoing, OutTask shall use reasonable efforts to notify Client no less than sixty (60) days in advance of any anticipated assumption of OutTask’s obligations hereunder by a third party that is not a OutTask affiliate. Client’s termination of this Agreement following such notice, or within 90 days of such transfer, shall not be considered for Cause, and in the event of such termination as such time, the Termination Fee described above shall become due and promptly payable.
C. This Master Services Agreement, together with the SOW, is the entire agreement of the Parties and supersedes all prior communications, understandings and agreements.
D. This Master Services Agreement shall be interpreted, construed and governed in all respects under the laws of the State of California applicable to agreements executed and intended to be wholly performed within this State without reference to the conflict of law’s provisions therein.
E. In the event of a dispute by or among the Parties (excluding a dispute requiring an injunction or another action in equity), OutTask may request, and Client shall agree to submit to non-binding mediation in San Francisco, California with an independent mediator to be held within sixty (60) days of a Party delivering written notice of a dispute to the other Party, and, in such case, the Parties agree to make a good faith effort to resolve the dispute based on the recommendation(s) of the mediator. The Parties hereby agree to agree on an acceptable independent mediator within thirty (30) days of receiving notice of a dispute, and in the event that they cannot agree on an acceptable independent mediator within thirty (30) days of receiving notice of a dispute, then the executive director, or equivalent role, of the local bar association in San Francisco, California shall select the independent mediator.
F. Except as set forth above, any and all disputes arising under this Master Services Agreement shall be subject exclusively to the jurisdiction of the State of California, and the venue for any such litigation shall be proper in the courts of San Francisco County. The Parties waive all arguments of inconvenient forum. In the event of any dispute between the Parties under this Master Services Agreement, the prevailing Party in such dispute shall be entitled to, in addition to such other relief as may be granted, reasonable attorneys’ fees and costs of litigation as determined by a court of competent jurisdiction, or in a separate action brought by the prevailing party for the purpose of compensation for costs of suit.
G. The rights and remedies provided herein will be cumulative and in addition to any other rights and remedies, a party may have at law or in equity.
H. A breach of any of the promises or agreements contained in this Master Services Agreement, including without limitation Sections 5 and 12, may result in irreparable and continuing damage to Client for which there may be no adequate remedy at law, and Client is therefore entitled to seek injunctive relief as well as such other and further relief as may be appropriate.
I. OutTask acknowledges that the client will not carry any liability insurance on behalf of OutTask. OutTask will maintain in force adequate liability insurance to protect OutTask from any claims of tangible or intangible property damage (including loss of use) that may arise out of any act or omission of OutTask hereunder.
J. If any provision of this Master Services Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Master Services Agreement will remain in full force and effect. Any provision of this Master Services Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
K. Client’s execution of the MSA shall be deemed to be an acceptance of this Master Services Agreement as if this Master Services Agreement had been duly executed by the Parties.