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Sample Master Services Contract for IT Services

By Wayan Vota on May 6, 2009

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MY COMPANY    MY COMPANY ADDRESS

MY COMPANY MASTER SERVICE AGREEMENT
Client Name:
Effective Date:

This Master Services Agreement (“Agreement”) by and between Client as identified (above) and MY COMPANY Information Systems (“MY COMPANY”) located at the address set forth below, is effective as of the date specified above (the “Effective Date”). The parties agree as follows:

1.  Performance of Services: MY COMPANY Information Systems shall provide the Information Technology infrastructure support services set forth in the attached Professional Services Schedule (“Schedule”) and any subsequent schedules executed by the parties. Each Schedule shall set forth the type of services to be performed and the related fees. Fees shall be subject to change by MY COMPANY Information Systems upon notice to Client. Any fee estimates provided for work to be billed on an hourly or daily basis are for informational purposes only; Client agrees to pay for the actual services provided by MY COMPANY Information Systems at the specified rate.
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2.  Fees & Payment: Client agrees to pay all fees specified on each Schedule. All payments shall be made in U.S. dollars and will be due on Client’s receipt of the applicable invoice. MY COMPANY may bill in advance for any recurring service. Client shall be responsible for all taxes, withholdings, duties and levies arising from the services (excluding taxes based on the net income of MY COMPANY). MY COMPANY shall have the right to suspend service if Client has failed to pay any invoice within forty-five (45) days of receipt

3.  Terms of Agreement:
(a) Unless terminated earlier in accordance with (b) below, the initial term of this Agreement shall commence on the Effective Date and Terminate twelve (12) months thereafter. This Agreement shall automatically renew for successive one (1) year terms unless either party Provides the other with notification of termination at least thirty (30) days prior to expiration of the then-current term.

(b) Either party may terminate this Agreement (including any and all Schedules) at any time if the other party: (i) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach or (ii) ceases operation without a successor. Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Sections 4(b) (Warranty Disclaimer), 5 (Liquidated Damages), 6 (Limitation of Liability), 7(Confidential and Proprietary Information) and 8-14 (general terms) shall survive any expiration or termination of this Agreement.

4.  Limited Warranty:
(a) MY COMPANY warrants for a period of thirty (30) days following delivery (the “Warranty Period”) that all services will be performed in a professional manner in accordance with generally applicable industry standards. MY COMPANY’s sole liability (and Client’s exclusive remedy) for any breach of this warranty shall be for MY COMPANY to re-perform any deficient services, or, if MY COMPANY is unable to remedy such deficiency within thirty (30) days, to void the invoice for the deficient services. MY COMPANY shall have no obligation with respect to a warranty claim: (i) if notified of such claim after the Warranty Period or (ii) if the claim is the result of third-party hardware or software, the actions of Client or some other party or is otherwise caused by factors outside the reasonable control of MY COMPANY.

(b) THIS SECTION 4 IS A LIMITED WARRANTY, AND SETS FORTH THE ONLY WARRANTIES MADE BY MY COMPANY. MY COMPANY  MAKES NO OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OR ANY WARRANTIES REGARDING THE PERFORMANCE OF ANY SOFTWARE OR HARDWARE PROVIDED OR INSTALLED BY MY COMPANY. CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE WARRANTY PERIOD.

5.  LIQUIDATED DAMAGES FOR HIRING MY COMPANY EMPLOYEES: If, during the term of this Agreement or for twelve months thereafter, Client directly or indirectly retains the services (whether as an employee, independent contractor or otherwise) of any employee of MY COMPANY (or ex-employee within three months of the employee’s termination from MY COMPANY) who has provided services to Client on behalf of MY COMPANY, Client agrees that MY COMPANY will be damaged, but that the amount of this damage will be difficult to determine. Accordingly, Client agrees that for each such MY COMPANY employee hired by Client, Client will pay MY COMPANY Twenty-five Thousand Dollars ($25,000) as liquidated damages. Notwithstanding the foregoing, for the purposes of this section 5, “employee of MY COMPANY” shall include only employees of MY COMPANY who provide services to MY COMPANY customers and shall not include accountants, attorneys or other independent contractors of MY COMPANY who provide services to MY COMPANY itself.

6.  LIMITATION OF LIABILITY: MY COMPANY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR INTERRUPTION OF SERVICES, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OR INCREASED EXPENSE OF USE CLIENT OR ANY THIRD PARTY INCURS), WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR STRICT LIABILITY, EVEN IF MY COMPANY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH LIABILITIES.  MY COMPANY IS NOT RESPONSIBLE FOR PROBLEMS THAT OCCUR AS A RESULT OF THE USE OF ANY THIRD-PARTY SOFTWARE OR HARDWARE.  IN NO EVENT WILL THE AMOUNT CLIENT MAY RECOVER UNDER THIS AGREEMENT EXCEED THE TOTAL PAYMENTS MADE TO MY COMPANY BY CLIENT PURSUANT TO THIS AGREEMENT IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS. THE LIMITATIONS SET FORTH IN THIS SECTION 6 SHALL NOT APPLY TO PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF MY COMPANY.

7.  Confidential and Proprietary Information: Each party agrees that all know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party  (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Except as may be necessary to perform its obligations under this Agreement, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party ’s nondisclosure obligation shall not apply to information that: (i) was known to it prior to receipt of the Confidential Information; (ii) is publicly available; (iii) is  rightfully obtained by the Receiving Party from a third party; (iv) is independently developed by employees of the Receiving Party; or (v) is required to be disclosed pursuant to a regulation, law or court order.

Any templates, schematics, processes or technical documentation provided by MY COMPANY shall be deemed Confidential Information and proprietary information of MY COMPANY without any marking or further designation. Client may use such information solely for its own internal business  purposes.

MY COMPANY  shall maintain the confidentiality of information in its possession regarding individual protected health information in accordance with applicable law, and shall not release such information, to any other person or entity, except as required by law.

8.  Independent Contractor: The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

9.   Assignment: This Agreement may not be assigned by Client without the prior written consent of MY COMPANY but may be assigned by MY COMPANY (i) pursuant to a merger or change of control or (ii) to an assignee of all or substantially all of MY COMPANY’s assets. Any purported assignment in violation of this section shall be void.

10.  Disputes; Governing Law; Arbitration: California law will govern and enforce this  Agreement. Any litigation or arbitration between Client and MY COMPANY will take place in any state court located within Santa Clara County, California or federal court within the Northern District of California. Client and MY COMPANY waive any objection to personal jurisdiction or venue in any forum located in those jurisdictions. Except for a claim of payments of amounts due, no action, regardless of form, arising out of this Agreement may be brought by either party against the other more than one year after the cause of action has arisen. At the option of either Client or MY COMPANY, any dispute arising from or with respect to this Agreement will be decided by arbitration by the American Arbitration Association in accordance with its Commercial rules. At the request of either party, proceedings may be conducted in secrecy.

11.  Complete Understanding; Modification: This Agreement, including any and all Attachments and Schedules attached hereto, constitutes the full and complete understanding and agreement between Client and MY COMPANY and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by both Client and MY COMPANY.

12.  Waiver and Severability: Waiver or failure by either party to exercise in any respect any right provided for in the Agreement will not be deemed a waiver of any further right under this Agreement. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of this Agreement will continue in full force and effect.

13.  Force Majeure: Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as strikes, blockade, war, terrorism, riots, natural disasters, and/or refusal of license by  the government, insofar as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.

14.  Notices and Reports: Any notice or report hereunder shall be in writing to the notice address set forth below and shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service.

ACCEPTED BY:                                                                         ACCEPTED BY:
Client                                                                                          MY COMPANY
Name:                                                                                         Name:
(Please Print)                                                                             (Please Print)
Signature:                                                                                   Signature:
Date:                                                                                           Date:
Address:                                                                                     Address:

Please sign upon acceptance of this agreement. Thank you for your business!

Filed Under: Business
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Written by
Wayan Vota co-founded ICTworks and is the Digital Health Director at IntraHealth International. He also co-founded Technology Salon, MERL Tech, ICTforAg, ICT4Djobs, ICT4Drinks, JadedAid, Kurante, OLPC News and a few other things. Opinions expressed here are his own and do not reflect the position of IntraHealth International or other ICTWorks sponsors.
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One Comment to “Sample Master Services Contract for IT Services”

  1. Anonymous says:

    Is there is any clause in MSA (master service agreement) regarding non-solicitation /non competent