Master Services Agreement

General Terms and Conditions

This Master Services Agreement (this “Agreement”), by and between Anatomy IT, LLC, (“Provider”) and Customer found on the applicable Statement of Work (“Customer”) (each a “Party” and, collectively, the “Parties”) is entered into and effective as of the date on which the Customer and Provider first execute a Statement of Work (defined below) for products or services under this Agreement (the “Effective Date”).

  1. Definitions
    1. Applicable Rates” means Provider’s hourly rate as in effect from time that is applicable.
    2. “Billing Date” means the first date upon which Customer is billed for Service(s).
    3. “Customer Data” means any electronic data or personal information submitted by Customer to Provider during the Term of this Agreement.
    4. “Customer’s Environment” means the components which comprise the internal and external networks, hardware, software, applications, systems interfaces, operations relevant to Customer’s information technology system.
    5. Customer Software” means software in use on Customer’s Devices, on the date of this Agreement or at any time during the Term, which is not software installed on the Equipment or provided by Provider for installation on Customer’s Devices. Customer Software includes software which Customer owns or licenses from a third-party.
    6. Deliverables” means the Products to be delivered and/or Services objectives to be accomplished, all as described in a SOW.
    7. Device” means any equipment included in the Services, whether owned by Customer or provided by Provider for Customer’s use, including, but not limited to computers, printers, servers, routers, switches, and mobile or handheld microcomputers as well as the operating software for the Device.
    8. “Effective Date” has the meaning set forth in the introductory clause of this Agreement.
    9. “Facilities” means buildings, locations, and offices which act as a place of business for the Customer that may be covered by Services provided by Provider as outlined in a SOW.
    10. “Fees” mean the fees for the Products and/or Services selected by Customer that are itemized or referenced in a SOW.
    11. “Product” means any physical or virtual hardware, equipment, devices, accessories, software, and licenses which are purchased by the Customer from Provider pursuant to a SOW.
    12. “Provider Asset” means any physical or virtual Provider Equipment, Devices, accessories, Software, licenses, and documentation that are solely owned by Provider. Provider Assets may be provided to Customer as outlined in a SOW.
    13. Provider Equipment” means any computer, networking or telephone equipment, racking, or associated hardware or other equipment (if any) that Provider owns and installs at Customer’s Facilities. Provider Equipment does not include any hardware or devices that Provider may sell to Customer or procure on Customer’s behalf.
    14. “Scope of Work” means the description and extent of the Products and/or Services to be provided by Provider and included within a SOW.
    15. “Services” means collectively all services provided by Provider and outlined within a SOW.
    16. Software” means all and any software installed on Provider Equipment or provided by Provider for installation on Customer’s computer equipment to facilitate the delivery of the Services.
    17. “SOW” means a Statement of Work describing the Products and/or Services to be provide by Provider pursuant to the terms of this Agreement. The term “SOW” shall include all schedules and service attachments attached to any SOW.
    18. “User” means the person who operates any Equipment or Devises at the Customer’s Location.
  2. Agreement-Scope, Term, and Modifications
    1. Content. This Agreement consists of (i) the general terms and conditions outlined within this document (ii) all SOWs which are made a part of this Agreement, either upon the Effective Date or at a later date upon the execution of the SOW, (iii) all attachments to this Agreement or to a SOW, and (iv) any Non-Disclosure Agreement executed by the Parties that refers to this Agreement.
    2. Scope. This Agreement outlines the general terms and conditions of the relationship between the Parties. Provider shall have no obligation under this Agreement or otherwise to provide Services or Products other than services or products within the Scope of Work described in a SOW that has been executed by both Parties.
    3. Term. This Agreement should remain in effect for the period of time provided in the SOW, “Term”.
  3. Statements of Work
    1. Contents. The Parties will define the Products and Services to be provided pursuant to this Agreement in one or more SOWs. Each SOW will refer to this Agreement and will include the following information: (i) a list of the Products and/or Services to be provided, (ii) a Scope of Work for implementation of the selected Products and Services, (iii) the pricing for the Products and Services to be provided, and (iv) if applicable, the Deliverables, and the Service Start Date.
    2. Integration. A SOW that has been executed by both Parties will be deemed to be incorporated into and made a part of this Agreement.
    3. Conflicting Terms. In the event of a conflict between the terms of this Agreement and any SOW, the SOW will prevail. In the event Customer submits a purchase order, the purchase order will have no force or effect.
    4. Changes to Statements of Work.
      1. Proposing Changes. Either Party may propose changes to the Products, Services, Deliverables or other terms set forth in a SOW by providing written notice to the other Party.
      2. Request for Additional Services. Customer may request additional Products or Services not within the scope of an existing SOW, and Provider shall provide Customer with the estimated costs and other terms and conditions for providing same.
      3. Change Orders. If the Parties agree to changes and/or additions with respect to the Products, Services, or SOW, the Parties shall cooperate to execute a Change Order in the form provided by Provider (“Change Order”). If either Party declines to execute the Change Order, it shall not become effective.
      4. Changes to Fees. Provider may adjust the Fees stated in a SOW as of any anniversary of the Billing Date. Provider may adjust prices at any time for products or servcies covered by a SOW to reflect any increase in applicable third-party costs for the Products or Services. Provider shall provide advance notice to Customer of any Service Fee increase.
  4. Termination
    1. Termination for Cause. Either Party may terminate this Agreement or any SOW upon written notice for “Cause,” which means and includes the following: if the other Party (i) fails to comply with any material term or condition of this Agreement or the applicable SOW and fails to cure such non-compliance to the reasonable satisfaction of the non-breaching Party within thirty (30) days after receipt of written notice providing full details of such non-compliance; (ii) terminates or suspends all or substantially all of its business activities; or (iii) becomes subject to any bankruptcy or insolvency proceeding. Upon any such termination, Provider may discontinue performance with respect to the terminated SOW(s) and may repossess all relevant Provider Assets. Notwithstanding the foregoing, Customer’s obligation to pay for any Products and Services that it has accepted will not be affected by any termination of this Agreement or a SOW. For absence of doubt, a transfer of ownership of a Company or a sale of all or substantially all of its assets does not constitute a termination or suspension of business for purposes of this Section 4.1(ii).
    2. Outstanding SOWs. Notwithstanding the termination of any SOW, this Agreement will not be terminated as long as there is at least one SOW remaining in effect. If this Agreement is terminated or is not renewed, any outstanding SOW(s) shall remain in effect; and this Agreement shall continue to apply until the SOW expires or is terminated. If a SOW provides for automatic renewal, the SOW shall remain in effect until it is non-renewed in accordance with its terms.
    3. Obligations upon Separation. Upon termination of this Agreement or any SOW, whether upon expiration or otherwise, the Customer and the Provider shall perform the obligations arising as a result of termination of the Agreement or the SOW, as applicable, as set forth in this Agreement and in the relevant SOW(s) and, in addition, the Parties shall enter into a Separation Agreement setting forth the following information and provisions:
      1. A statement identifying the Agreement(s) and/or SOW(s) that are being terminated;
      2. The Services to be performed prior to the effective date of termination;
      3. The timeframe for transfer of information regarding the Customer’s Provider-hosted cloud data, if applicable (per Section 9.2 hereof).
      4. The Service Fees to be paid by the Customer in connection with the termination (which may include, without limitation, fees for data transfer as provided in Section 9.6 of this Agreement, hard drive data removal, documentation of network and equipment, hard drive disposal, transition to new service provider, etc.)
      5. Any changes to the payment terms for additional and/or outstanding amounts owed by the Customer,
      6. The Provider’s right to withhold services until required payments are made,
      7. Fees due and payable under the SOW and fees for early termination or otherwise (if stipulated in a SOW)
      8. The Party’s respective rights and obligations with respect to any Provider Assets located at the Customer’s Facilities, and
      9. Mutual waivers and releases by the Parties.
    4. The Provider shall not be obligated to provide Services in connection with the termination of the Agreement(s) and or SOW(s), to assist with the transition or provide administrative control, nor to release the Customer’s passwords to the Customer or to the successor service provider unless and until the Parties have signed the Separation Agreement.
  5. Delivery of Products
    1. Placement of Orders. Orders for Products will be placed within a reasonable period of time following execution of a SOW between the Parties and satisfaction of the conditions stipulated in the SOW including Provider’s receipt of required deposits, if applicable. Customer acknowledges that delivery typically depends upon the availability of products, services and parts from suppliers and that supply chain and other delays may occur. Provider shall not be liable for any such delays, nor shall such delays be cause for termination of a SOW.
    2. Delay or Unavailability. In the event that there is a delay in availability or discontinuation of a Product, Provider will notify Customer and, with Customer’s approval, make reasonable efforts to source the Product or a similar product from another authorized supplier. Additionally, if there are delays in the procurement of Equipment included in a SOW beyond 30 days from the Effective Date, Customer acknowledges that there may be differences in price when this occurs and agrees to pay that difference in price as invoiced by Provider.
    3. Risk of Loss. All risk of loss or damage to Products in transit shall be borne by Customer.
  6. Acceptance; Remedies for Non-Conformity
    1. Acceptance of Products.
      1. Time for Inspection and Testing. No later than the earlier of (a) five (5) business days from the date of delivery of any Product to Customer’s Facilities, or (b) the date of expiration of the relevant third-party warranty of a Product, Customer shall conduct a reasonable inspection and adequate testing of the Product and shall give notice to Provider of any claims for defects, nonconformities, or damages (“Nonconformities”). (A Product that has Nonconformities is a “Nonconforming Product.”) If Customer fails to notify Provider within the applicable period described above, the Product shall be deemed to be accepted by Customer and to conform to the specifications set forth in the SOW. For purposes of this Section 6.1.1, delivery shall be deemed to occur on the date the Product is delivered (and installed if applicable) and ready for testing.
      2. Customer’s Sole Remedy. Upon receipt of timely notice of a Nonconformities, Provider will promptly correct same and will notify Customer. If Provider is unable to correct a Nonconformity, it will remove the Product (or portion thereof) that is non-conforming and, if appropriate, will issue a refund to the Customer equal to the fee for the Product or portion thereof that is non-conforming. If the Product is necessary for the effective and secure functioning of Customer’s Environment and, therefore cannot be removed, Provider will propose a solution, subject to Customer’s acceptance, which shall not be unreasonably withheld. If Customer rejects the proposed solution, Provider has the option to terminate the relevant SOW. THIS SECTION 6.1.2 SETS FORTH CUSTOMER’S SOLE REMEDY FOR ANY NONCONFORMING PRODUCT.
      3. Return Fees; Non-returnable Products. Customer will have the sole responsibility for any fees, including any restocking fees, return shipping fees, or other charges for returned Products. In the event that the Product is deemed non-returnable by the supplier, Customer will be responsible for paying the total cost of the Product, unless the Provider’s act or omission caused the Product to be a Nonconforming Product.
    2. Acceptance of Services. Provider’s Services as described in a SOW shall be subject to acceptance by Customer; and Customer shall accept Services so long as such Services and Service Deliverables conform in all material respects with the specifications set forth in the SOW. If any Services or Deliverables are not acceptable, Customer shall, (a) within five (5) days of receipt of notice of completion of Services or (b) if no notice of completion has been given, within five (5) days of receipt of the invoice for the Services or Deliverables (including a monthly invoice for recurring services), deliver notice of non-acceptance to Provider, specifying the grounds for non-acceptance (“Non-Acceptance Notice”). If Customer fails to deliver a Non-Acceptance Notice within said five-day period, Customer will be deemed to have accepted the Services and/or Service Deliverables. Upon receipt of the Non-Acceptance Notice, one of the following shall occur:
      1. If Provider concurs with the Customer’s non-acceptance of the Services or Deliverables, Provider will, at no additional cost, cure the defect(s) identified in the Non-Acceptance Notice by conforming the non-compliant Services or Service Deliverables to the SOW’s specifications.
      2. If Provider disagrees with Customer’s determination of unacceptability, as stated in the Non-Acceptance Notice, the Parties will attempt to resolve their disagreement.
      3. If Provider concurs with the Customer’s non-acceptance but is unable to cure the defect, the Parties will negotiate an appropriate adjustment to the SOW and/or, if applicable, a credit to be applied against future billing.
  7. Rate, Expenses, and Payment Terms
    1. Service Rates.
      1. Hourly Rates. Except as otherwise explicitly stated in a SOW, Services will be provided at the Applicable Rates.
      2. Special Rates. Except as otherwise explicitly stated in a SOW, special rates shall apply for services requested outside of normal business hours (8 am to 5 pm, local time Monday through Friday) (or for customers outside of the continental United States, as “Normal Business Hours” are defined in the SOW) or on US federal holidays. Special rates for services outside of normal business hours are charged at one and a half (1.5) times the Applicable Rates, with a one hour minimum. Holiday hour rates are two (2) times Applicable Rates, with a one (1) hour minimum. Service requests that require an on-site component are charged per trip, and the charge includes the on-site performance of the service request and all time traveling to and from the Customer’s Facilities.
    2. Costs and Expenses.
      1. Provider’s Expenses. Customer shall pay Provider’s reasonable out-of-pocket expenses, including travel expenses, lodging, meals, parking, or other similar expenses, which may be incurred by Provider in performing Services. Any such expenses will be itemized, billed at cost, and invoiced as incurred. If Provider has incurred expenses for an on-site visit or other travel that is cancelled by Customer, Customer must reimburse Provider for such expenses and must pay any cancellation fee referenced in the SOW. Expenses for travel, food and lodging incurred by Provider staff assigned to augment Customer’s staff (i.e., on-site, dedicated personnel) who are designated as such in a SOW are not charged to Customer, unless otherwise specified in the SOW.
      2. Pass-Through Charges. Provider may pass on to Customer any charges or rate adjustments imposed upon Provider by governmental entities, industry regulators or associations, or any third party, including the cost of third-party support contracts, assets, licensing, or fees of any kind. Without limiting the generality of the foregoing, Provider may charge Customer for the following items:
        1. Any third-party fees that are due or will become due following termination of this Agreement or any SOW, as well as third-party termination charges, and
        2. Late fees, interest, collection costs and any other amounts charged by a third party due to Customer’s failure to make timely payment of any third-party costs invoiced by Provider to Customer.
      3. Taxes. Prices and fees for Products and Services do not include any taxes unless otherwise noted in a SOW. Customer will pay, when due, any sales, use, rental, property, or other taxes or assessments of any kind (including, without limitation, withholding or value-added taxes) imposed by any federal, state, local or other governmental entity for Products and Services provided under this Agreement, excluding taxes based solely on Provider’s net income (collectively, “Taxes”). For absence of doubt, Taxes include personal property taxes imposed on Provider Assets located at Customer’s Facilities. Customer will promptly reimburse Provider for any Taxes paid by Provider and will hold Provider harmless from all claims and expenses arising from Customer’s failure to pay any such Taxes. If Customer is exempt from any Taxes, Customer will not be relieved of its obligation to pay such Taxes until Customer provides documentation sufficient to establish Customer’s tax-exempt status. In the event an independent third-party tax audit of the Provider occurs, and if such audit determines that additional Taxes should have been collected from the Customer, Provider shall notify Customer of such Taxes, and Customer shall promptly remit payment of the stipulated amount to Provider.
      4. Other Costs to be Borne by Customer. The following costs will be borne by Customer:
        1. Software, licensing, or software renewal or upgrade fees of any kind.
        2. The cost to bring Customer’s Environment up to minimum standards required for Services (as described in Section 8.2, below).
        3. Service and repair made necessary by the installations, alterations or modifications of equipment, devices or software not authorized by Provider, including alterations, installations or modifications made by any Customer employee, contractor, subcontractor, or other associate of Customer, or any third party.
        4. Modification of software code or maintenance of any software, whether acquired from Provider or any other source, unless otherwise provided in a SOW.
        5. Training services of any kind unless otherwise provided in a SOW.
        6. Shipping costs, including insurance on the shipment, unless a SOW explicitly states that quoted prices include shipping costs. Shipping will be by ground transportation, regular delivery, unless Customer requests another delivery option.
    3. Payment Terms. Customer shall pay all undisputed amounts due and owing as stated in a Provider invoice within 30 days after receipt (“Payment Deadline”). Client shall pay Provider’s collection costs, including reasonable attorneys’ fees, plus a late charge of one- and one-half percent (1.5%) per month or the maximum lawful rate, whichever is less, for all invoiced amounts not paid by the Payment Deadline.
    4. Notice of Disputed Invoice. If Customer disputes in good faith all or any portion of an invoice and gives timely notice in accordance with Article 6 of any Nonconformity (Section 6.1) or Non-Acceptance (Section 6.2), or if Customer requires any adjustment to an invoiced amount for any other reason, Customer must notify Provider in writing within ten (10) days of receipt of the Invoice of the nature and basis of the dispute and/or adjustment. If the Parties are unable to resolve the dispute prior to the Payment Deadline, Customer shall nevertheless pay all undisputed amounts by the Payment Deadline. Any refunds due to Customer shall be applied against a subsequent invoice.
    5. Suspension of Services. If Customer fails to pay all undisputed amounts owed under this Agreement on or before the Payment Deadline, then upon at least ten (10) business days prior written notice, in addition to any other remedies available to Provider, Provider may suspend Services under this Agreement until full payment is made. During the period of suspension and until restoration is fully completed, Provider shall have no responsibility whatsoever for any occurrences, circumstances or conditions affecting Customer’s Environment including, without limitation cyberattack, virus, data breach, or business interruption. Following any suspension of service under this provision, once Provider has received full payment, Provider shall restore the Services after validating that all components to be monitored and/or managed under any applicable SOW comply with Provider’s level of security, updates and best practices. Customer shall pay at Provider’s Applicable Rates for updates and other work necessary to restore Services.
  8. Customer Representations, Covenants and Responsibilities
    1. Provider Access and Customer Assistance. Customer shall supply Provider necessary access to its personnel and facilities to allow Provider to timely perform the Services. Customer will treat Provider personnel professionally and respectfully at all times. Customer shall provide in a timely and professional manner, and at no cost to Provider, assistance, cooperation, complete and accurate information and data, equipment, access to applicable computer and telecommunications facilities, carts to move equipment, networks, firewalls, servers, programs, files, documentation, passwords, a suitable work environment, and other resources reasonably requested by Provider to enable it to perform the Services (collectively, “Assistance”). Provider shall not be liable for any delay or deficiency in performing the Services if such delay or deficiency results from Customer’s failure to provide Assistance as required hereunder. Assistance includes, in addition to the items described above, designating a “Primary Customer Contact” (meaning the individual designated by Customer to be Provider’s principal resource for administrative input related to the performance of the SOW as well as supplying contact information for Provider use to send alerts, notifications, news, and general correspondence to Customer). If Customer is unable to assign personnel who are competent to provide all or any aspect of the Assistance, Provider shall dispatch Provider personnel to Customer’s site to provide the Assistance, or shall provide the assistance remotely, and Customer shall pay for such Assistance at Provider’s Applicable Rates.
    2. Customer’s Environment. Customer shall be responsible for meeting certain standards with respect to Customer’s Environment to enable Provider to provide the Products and Services. Customer’s Environment must have reasonable safety standards in place, as reasonably determined by Provider. Customer agrees that Provider may audit Customer’s Environment from time to time to monitor compliance with the requirements stated in this Agreement or in any SOW. Without limiting the generality of the foregoing, Customer must provide the following at its own cost and expense, in addition to the requirements stated in any SOW; and if Provider’s assistance is required, Customer shall pay for such assistance at Provider’s Applicable Rates:
      1. Broadband Internet access;
      2. Remote access (via VPN or other reasonable remote access) to covered Devices;
      3. Appropriate cabling to all covered Devices;
      4. Appropriate air conditioning and ventilation for all covered Devices, in order to maintain temperature and air quality as specified by the applicable hardware manufacturers;
      5. Power surge protection for all covered Devices;
      6. Convenient and timely access to the equipment covered under this Agreement or a SOW; and
      7. Adequate working space and facilities within a reasonable distance of the equipment covered by this Agreement or a SOW, and access to and use of all information, internal resources, and facilities determined necessary to service such equipment.
    3. Service Fee Commencement. If Provider is unable to commence delivery of the Services on the Service Start Date stipulated in a SOW because of any delay on Customer’s part, including but not limited Customer’s failure or inability to fulfill its obligations under Sections 8.1 and 8.2 hereof in a timely manner, Customer nonetheless will begin to incur Service Fees beginning on the Service Start Date.
    4. Viruses. Customer must have an anti-virus solution in place, which is up to date and includes a valid updated subscription. Provider is not liable for any harm that may be caused by Customer’s access to third-party application programming interfaces or the execution or transmission of malicious code or similar occurrences, including without limitation, disabling devices, drop dead devices, time bombs, trap doors, Trojan horses, worms, viruses and similar mechanisms. In the event that a virus, malware, or ransomware infection occurs, Provider will work with Customer at Customer’s request to develop a remediation plan. Development and execution of the remediation plan will be deemed outside of the Scope of Services, and Customer shall pay Provider at Provider’s Applicable Rates for Provider’s services in connection with such remediation.
    5. Network Security and Malicious Events
      1. Protection from Unauthorized Access. Unless otherwise stated in a SOW, it is Customer’s sole responsibility to determine and carry out all actions necessary to protect and secure Customer’s Data from unauthorized access, including data existing in on-site and cloud-based networks, on-site and cloud-based storage, and local area networks. Without limiting the generality of the foregoing, an appropriate hardware firewall must be in place, and wireless data traffic from the Customer’s Environment must be securely encrypted.
      2. Theft of Service. Customer shall notify Provider immediately, by electronic mail or by calling the Provider customer support line, if Customer becomes aware at any time that the Services are being stolen or used fraudulently. Provider will not issue credits for fraudulent charges arising out of third-party hacking into any Devices, including, but not limited to, modem hijacking, wireless hijacking or other fraud, and Customer agrees to hold Provider harmless from any loss, injury, or damage sustained by Customer arising from any theft of services or fraudulent use of services.
      3. Third-Party Activity. Provider is not responsible for criminal or malicious acts of third parties, including but not limited to intrusions or unauthorized access of any kind, hackers, phishers, crypto-locker, and any network environment subject to ransom; and Customer agrees that Provider shall not be liable for any losses, damages or costs including, but not limited to any payment of “ransom,” due to or arising out of any third-party activity affecting network security on Client’s environment. For absence of doubt, Customer acknowledges that Provider is not expected to underwrite Customer’s cyber risk, and under no circumstances will Provider be held responsible or liable for ransomware attacks or other cyber security breaches, irrespective of the source of the breach.
      4. Visitors and Guests. Provider shall have no liability for any losses or damages of any kind sustained by Customer’s visitors and guests who use their own devices or Customer’s Devices or networks or undertake any other action in the Customer’s Environment.
    6. No Hiring
      1. Customer acknowledges that Provider invests substantial effort and funds to identify, recruit, hire and train its employees, contractors, subcontractors, associates, and others directly associated with Provider’s work effort (each a “Provider Resource”). Customer agrees, therefore, that it will not directly or indirectly solicit, hire or contract with any Provider Resource, or offer any bartered services to such Resource, at any time during the Term of this Agreement and for a twelve (12) month period following termination thereof or for twelve (12) month period following the termination of employment (or engagement as contractor) of any Provider Resource except with Provider’s prior written consent. This provision is not intended to prevent Customer from conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on websites for general circulation or from hiring individuals who respond to such solicitations.
      2. Should the Customer hire or engage any Provider Resource without first obtaining the consent of Provider, Customer acknowledges that it would be extremely difficult to ascertain the actual damages resulting from such breach. Therefore, in the event of a violation of this provision, in addition to any other right the Provider may have at law or in equity, Customer shall make a one-time payment to the Provider in the amount of one hundred percent (100%) of the Provider Resource’s annual compensation for the year preceding Customer’s hiring or engagement. The Parties agree that such amount is not intended as a penalty and is reasonably calculated based upon the projected costs to be incurred by the Provider to identify, recruit, hire and train a suitable replacement for such Resource.
  9. Customer Data
    1. Ownership. All Customer Data, including virtual machine data, shall belong to Customer.
    2. Virtual Machine Data. In the case of virtual machine data, Customer agrees that all virtual machines and configurations of Customer’s network shall belong to Provider. Upon Customer’s request, at any time during the Term of this Agreement or, if stipulated by the Separation Agreement, within the time frame stated therein, Provider will turn over all information regarding any Customer virtual machines to Customer, including any records regarding the current or historical configuration of the virtual machines sufficient to allow Customer to operate the virtual machines without Provider’s involvement; provided that the virtual machines and configuration continue to belong to Provider and to constitute Confidential Information of Provider.
    3. Restrictions on Provider Use. Provider shall not use, edit, or disclose to anyone other than Customer any Customer Data, except as otherwise requested by Customer or required by court order or applicable law.
    4. Access to Accounts. All data stored on the virtualized machines assigned to Customer, including locally stored personal data of individual employees, will be considered Customer Data by Provider. Provider may access Customer’s personnel accounts, including Customer Data, solely to respond to service or technical problems or otherwise at Customer’s request.
    5. Third Party Access. If Customer purchases, enables, or engages any third-party service for use in connection with the Services, Customer acknowledges that Provider may allow such third parties to access Customer Data as required for integrating the operation of such third-party services with the Services. Customer acknowledges that its use of any third-party service constitutes Customer’s independent consent to the access and use of Customer Data by the third-party service provider, and that such consent, use, and access is outside of Provider’s control. Provider will not be responsible or liable for any data breach, introduction of any virus, disclosure, modification or deletion of Customer Data, or any other security issue resulting from any such access by third-party service providers.
    6. Data Transfer. At any time within thirty (30) days of the date of termination of this Agreement or any SOW, so long as Customer has paid all Service Fees and other amounts owed to date, has signed a Separation Agreement, and has paid in advance, at Provider’s Applicable Rates, for data transfer, Provider shall provide services necessary to help Customer transfer Customer Data to Customer or to the new provider. The Customer Data transferred during such post-termination transfers shall be transferred “as is.”
  10. Intellectual Property Rights
    1. Provider Works. Unless otherwise explicitly provided in a SOW, any writing or work of authorship, regardless of medium, created or developed by Provider or Customer in the course of performance under this Agreement, as well as all related existing work owned by Provider is a “Provider Work,” is not to be deemed a “work made for hire,” and is and will remain the sole, exclusive property of Provider. To the extent any Provider Work is for any reason determined not to be owned solely by Provider, Customer hereby irrevocably assigns and conveys to Provider all of its rights in and to such Provider Work. Customer further hereby irrevocably assigns to Provider all of Customer’s patent, copyright, trade secret, know-how and other proprietary and associated rights in any Provider Work.
    2. Improvements. Customer hereby assigns to Provider any and all suggestions, ideas, enhancement requests, feedback, recommendations, or other information generated or developed by Customer and its personnel relating to any proposed improvements of or modifications to the Products or Services or to Provider-owned intellectual property.
    3. License to Provider Works. Provider hereby grants Customer a limited, non-exclusive, revocable, royalty-free license to use any Provider Works for Customer’s internal business purposes only during the term of this Agreement.
    4. License Restrictions. Irrespective of the presence or absence of a copyright notice, Customer shall not modify, copy or create derivative works based on the Products or Services or on the Provider Work. Additional license restrictions may be set forth in a SOW.
  11. Provider Obligations; Warranties and Limitations of Warranties
    1. Warranty of Performance. Provider will provide all Products and perform all Services in accordance with the terms and conditions of this Agreement and the SOWs. The Services and Products delivered hereunder shall conform to the specifications set forth in the relevant SOWs, subject to the limitations and exceptions set forth herein or in the applicable SOW.
    2. Skilled Personnel. Provider will assign Provider Resources who have the experience, skill, and expertise necessary to perform the Services, as determined in accordance with Provider’s professional judgment.
    3. Limitationsand Exceptions
      2. Limitations of Technology. Customer acknowledges that many factors beyond Provider’s control, including but not limited to Force Majeure events, third-party vendor errors and delays, equipment and software failures and defects, internet or power outages, security breaches, and cyber-attacks, may occur and are likely to cause interruptions and errors, and that the Services, in any case, may not meet all of Customer’s requirements. ACCORDINGLY, PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT PROVIDER WILL CORRECT ALL SERVICES ERRORS, THAT THE SERVICES WILL MEET CUSTOMER’S EXPECTATIONS OR ITS REQUIREMENTS (OTHER THAN REQUIREMENTS STATED AS SPECIFICATIONS IN SOWS), OR THAT THE SERVICES WILL BE COMPLETELY SECURE. FURTHER, PROVIDER IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE PRODUCTS OR SERVICES THAT ARISE FROM CUSTOMER’S CONTENT OR THIRD-PARTY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES.
      3. Compatibility with Third-Party Technologies. Customer acknowledges that technologies are not universally compatible, and that there may be particular Customer Devices, Customer Software, and Customer technologies that Provider may be unable to monitor, manage, or patch. Provider shall inform Customer if it discovers that such a situation exists. Customer agrees to correct the situation if possible and, in any case, to hold Provider harmless from any loss, damages or expense resulting therefrom. Patch, antivirus and other relevant technologies and solutions are distributed by their respective software vendors, and as such, Provider has no control over the effectiveness of the software and shall not be held responsible for interruptions in service due to patches and other solutions released by software vendors.
      4. Third-Party Services. Provider does not warrant third-party services, including services which Provider recommends, offers, facilitates, or links to Customer; and Provider is not responsible or liable for such services or any losses, costs, damages, defects, errors, or service interruptions that result from Customer’s use of such services. Any purchase, enabling, or engagement of third-party services, including but not limited to implementation, customization, consulting services, e-mail, web hosting, server hosting, phone service, and any exchange of data between Customer and any third-party service is solely between Customer and the third-party service provider and is subject to the terms and conditions agreed upon between Customer and such third-party provider.
      5. Third Party Product Warranties. Provider makes no independent representations or warranties with respect to the Devices or Software purchased or licensed by Customer from any third party. Any third-party warranties are Customer’s exclusive remedies with respect to such Devices and Software. In the event of a Device or Software non-conformity, malfunction, or other failure, Provider will make itself available, at Customer’s request and at Provider’s Applicable Rates, to assist Customer in making claims under the manufacturer’s or developer’s warranties of such Devices or Software.
  12. Mutual Indemnification
    1. By Customer. Customer will defend, indemnify and hold harmless Provider, its Affiliates, and its and their respective directors, officers, employees, successors, assigns and agents, from and against all claims, allegations, demands and proceedings by a third party, and all resulting losses, judgments, liabilities, damages, settlements, costs and expenses (including reasonable attorneys’ fees and expenses) (each, a “Third-Party Claim”), to the extent arising out of or relating to: (1) Customer’s failure to use the Services or Deliverables in a manner consistent with applicable law including any violation of data privacy laws; (2) the fraud, negligence or willful misconduct of Customer in the performance of its obligations under this Agreement; (3) any bodily injury (including illness or death) or property damage caused by Customer; (4) infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary right of any third party by the provision or use of the Services, Software or Devices, unless such infringement or misappropriation resulted from an act or omission of Provider in the course of performance of this Agreement; and (5) any breach by Customer of its confidentiality obligations under this Agreement.
    2. By Provider. Subject to the limitations on liability stated in Section 13 of this Agreement, Provider will defend, indemnify and hold harmless Customer, its affiliates, and its and their respective directors, officers, employees, successors, assigns and agents, from and against all Third-Party Claims to the extent arising out of or relating to: (1) Provider’s failure to provide the Services and Deliverables in a manner consistent with applicable law including any violation of data privacy laws; (2) the fraud, negligence or willful misconduct of Provider in the performance of its obligations under this Agreement; (3) any bodily injury (including illness or death) or property damage caused by Provider; (4) infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary right of any third party by the provision or use of the Services, Software or Equipment except to the extent that the Third- Party Claim is indemnified by Customer pursuant to the provisions of Section 12.1; and (5) any breach by Provider of its confidentiality obligations under this Agreement.
    3. Indemnification Procedures. The indemnified party will notify the indemnifying party of any pending Third-Party Claim. The indemnifying party will use counsel reasonably satisfactory to the indemnified party to defend each Third-Party Claim and will keep the indemnified party informed of the status of each Third-Party Claim. The indemnified party will cooperate with the indemnifying party in the defense at the indemnifying party’s expense. Any indemnified party may participate in the defense at its own expense. In addition, any indemnified party may, at its own expense and without limiting the indemnifying party’s indemnification obligations, take control of its own defense of the Third-Party Claim. After taking control of its defense, the indemnified party and its counsel will proceed diligently and in good faith with its defense. Neither Party will consent to the entry of any judgment or enter into any settlement without the other Party’s prior written consent, which consent will not be unreasonably withheld. Each Party’s obligation to defend is independent of its obligation to indemnify.
  13. Limitations of Liability; Insurance
    1. The Customer’s sole remedies for non-conformities in Products or Services are stated in Section 6 of this Agreement. This Section 13 sets forth additional limitations on remedies.
    4.  Insurance.
      1. Customer’s Insurance. Customer shall maintain, at its expense, during the entire term of this Agreement and for a period of seven (7) years after termination thereof the following minimum coverage: commercial general liability, including public liability and product liability insurance with limits of not less than $2,500,000 per occurrence and $2,500,000 general aggregate to cover loss and damage incurred in connection with this Agreement, workers compensation coverage, and first party cyber liability , including “ransomware” coverage, with limits of not less than $2,500,000 per occurrence Customer agrees to waive and require its insurers to waive any rights of subrogation or recovery they may have against Provider, its agents, officers, directors and employees.
      2. Provider’s Insurance: If and to the extent commercially available (meaning an insurer agrees to provide the coverage at a commercially reasonable price), Provider will maintain, at its expense, during the entire Term of this Agreement and for seven (7) years after termination thereof : (1) “Commercial General Liability” insurance including public liability and product liability insurance with limits of not less than $2,500,000 per occurrence and $2,500,000 general aggregate to cover loss and damage incurred in connection with this Agreement; and (2) “Professional Indemnity” or “Errors and Omissions” insurance with limits of not less than $2,500,000 per claim and with a retroactive date no later than the date Services commenced.
      3. Certificate of Insurance. Upon a Party’s request from time to time, the other Party shall provide a certificate of insurance to verify that the required coverage is in place. Provider and Customer agree to cooperate in a timely manner in all respects of this process, including providing additional information in response to an insurance agent’s reasonable written requests. Failure to obtain the insurance required therein prior to the commencement of the Services shall not be deemed a waiver of such requirements or of any rights or remedies that Customer or Provider may have.
  14. Compliance with Laws and Policies
    1. Compliance with Laws. Each Party will comply fully with all applicable federal and state laws and regulations, including but not limited to export laws and regulations of the United States.
    2. General Health and Safety. Provider agrees to comply with all applicable health and safety protocols as per OSHA regulations in the course of providing Services hereunder. Customer agrees to remedy any existing conditions on Customer’s Facilities that have the potential to create a hazardous condition as outlined within OSHA regulations.
    3. Services to Customer in Health Care Industry. The following provisions apply only to Customers in the health care industry.
      1. Business Associate Agreement. Customer and Provider agree to comply with the applicable requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) as set forth at 45 C.F.R. Parts 160 and 164, and its implementing regulations, as amended by the Health Information Technology for Economic and Clinical Health Act and its implementing regulations. In that regard, Customer and Provider agree to enter into a Business Associate Agreement in the form attached to this Agreement.
      2. Discounts. If any discount, credit, rebate, or other Product incentive is paid or applied by Provider regarding the Products, then it is a “discount or other reduction in price” pursuant to the Medicare/Medicaid Anti-Kickback Statute. Each Party will comply with the “safe harbor” regulations stated in 42 C.F.R. § 1001.952(h).
      3. Proper Reporting of Discounts and Pricing. The prices under a SOW may reflect “discounts or other reduction in price” as that term is used in the “safe harbor” regulations in the Medicare/Medicaid Anti-Kickback Statute, 42 C.F.R. § 1001.952(h). The Parties hereto shall: (i) comply with all applicable laws and regulations relating to the accounting, application, and proper reporting of discounts and pricing under the SOW, including but not limited to the requirements of the discount “safe harbor” located at 42 C.F.R. § 1001.952(h); (ii) properly report and appropriately reflect all prices paid under the SOW net of all discounts as required by applicable laws and regulations, including but not limited to on Medicare, Medicaid and state agency cost reports; and (iii) retain a copy of the SOW and all other documentation regarding the SOW as required by law, together with the invoices for purchase of Products thereunder and permit representatives of the U.S. Department of Health & Human Services or any relevant state agency access to such records upon request.
    4. Customer Policies. Provider and all Provider Resources will comply with all Customer policies that are relevant to the Services being provided. Customer will inform Provider of its policies and will notify Provider in writing of any material changes to its policies. Any Customer policies that are in conflict with this Agreement or any SOW will have no force or effect unless otherwise stated in a written agreement between the Parties. If Customer does not provide Customer Policies, Provider reserves the right to apply its own internal security policies to maintain system security.
    5. Compliance with Law and Policies.
      1. Privacy Laws. Provider shall comply with data privacy laws, to the extent applicable to Provider. Provider’s Privacy Law Policies may be accessed on Provider’s website via the following link:
      2. Data Processing Addendum. If the Services to be provided by Provider require the processing of data under any privacy laws including, without limitation, CCPA, GLBA, HIPAA, GDPR, SHIELD, or United Kingdom data or similar data privacy and/or data protection regulations (as further described and defined in Provider’s Privacy Law Policies), Customer must enter into an applicable agreement with Provider in the form of a data processing agreement (the “Data Processing Addendum”). Each data privacy or data protection regulation may contain its own separate addendum (or combined addendum) depending on Provider or Customer’s regulated activities.
      3. Compliance with Acceptable Use Policy. Customer will use the Services in accordance with Provider’s Acceptable Use Policy, as amended from time to time. Provider’s Acceptable Use Policy can be found using the following link: In the event of any conflict between the Acceptable Use Policy and this Agreement, this Agreement controls.
  15. General Provisions
    1. Relationship of Parties. The relationship of Provider and Customer established by this Agreement or any SOW is solely that of independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, association, or employment relationship between the Parties. Provider is not the agent of Customer or any third party and does not have the authority to bind Customer or any third party to any contractual or other legal obligations.
    2. Force Majeure. If a Party is prevented from performing an obligation because of power outage, fire, flood, wind, earthquake, explosion, pandemic or other disaster, acts of military authorities, acts of civil authorities unrelated to any violation of law by the Party, war, riot, insurrection, act of terrorism or other cause beyond the Party’s reasonable control (collectively, a “Force Majeure Event”), then that Party will not be in breach of this Agreement during the period the Party is prevented from performing that obligation, provided that the Party: (i) promptly delivers notice to the other Party identifying the Force Majeure Event; and (ii) uses reasonable efforts to perform the obligation notwithstanding the Force Majeure Event.
    3. Confidentiality.
      1. Confidential Information. During the course of performance under this Agreement, either Party may be exposed to or may acquire the other’s proprietary or confidential information. Each Party as the recipient (“Recipient”) shall hold all such “Confidential Information” that it receives from the other Party (“Discloser”) in strict confidence and shall not use any such information or disclose it to any third party.
      2. Definition: “Confidential Information” means and includes the contents and existence of this Agreement and all SOWs, as well as any information that is not generally known outside the Discloser relating to any aspect of business of the Discloser, whether existing or foreseeable, including information relating to the Discloser that is conceived, discovered, or developed by Recipient. Confidential Information includes but is not limited to (a) project files; product designs, drawings, sketches and processes; new or existing product development; production characteristics; testing procedures and results thereof; manufacturing capabilities, methods, processes, techniques and test results; plant layouts, tooling, engineering evaluations and reports; know-how, identify of vendors and suppliers, trade secrets, business plans, financial statements and projections; operating forms (including contracts) and procedures; all information set forth in any merger and acquisition assessment; payroll and personnel records; non-public marketing materials, plans and proposals; customer lists and information, and target lists for new customers and information relating to potential customers; software and computer programs, including source code; training manuals; policy and procedure manuals; SOPs; raw materials sources, price and cost information; administrative techniques and documents; business strategy; and any information received by the Discloser under an obligation of confidentiality to a third party; and (b) in addition, with respect to Provider, Provider’s unpublished prices for Services, audit and security reports, server/network configuration designs, firewall and other hardware configurations, passwords, all business plans, technical information or data, product ideas, methodologies, calculation algorithms and analytical routines, and other proprietary technology; and (c) in addition, with respect to Customer, content transmitted to or from, or stored by Customer on, Provider’s servers.
      3. Non-Confidential Information. Notwithstanding the preceding provision, Confidential Information does not include:
        1. Information that at the time of disclosure is, without fault of the Recipient, available to the public by publication or otherwise;
        2. Information that the Recipient can prove was in its possession at the time of disclosure and was not acquired, directly or indirectly, from the Discloser;
        3. Information received from a third party with the right to transmit same without violation of any secrecy agreement with the Discloser; and
        4. Information that must be disclosed pursuant to court order or by law.
      4. For promotional purposes, Provider shall have the right to disclose to others the identity of its Customers.
    4. Assignments. Neither Party may assign any rights or obligations under this Agreement or any SOW without the other Party’s prior written consent, which will not be unreasonably withheld; provided, however, that either Party may assign or otherwise transfer its rights, interests, and obligations under this Agreement without the other Party’s consent in the event of a change in control of 50% or more of the voting control of Party, the sale of substantially all of its assets, or the restructuring or reorganization of the Party or its affiliate entities. If either Party transfers its rights, interests, and obligations under this Agreement without consent in violation of this paragraph then such assignment will not be valid. This Agreement is binding upon the parties, their successors, and permitted assigns.
    5. Notices. Any notice given under this Agreement, or any SOW will be in writing and will be deemed to be received: (i) upon delivery, if by hand or by overnight courier; (ii) three (3) days after mailing, if by certified or registered mail to the receiving Party’s Notice Address set forth in a SOW; or (iii) upon receipt if given electronically, as shown on the sender’s electronic records. Either Party may change its Notice Address upon written notice to the other Party.
    6. Severability. If any term or provision of this Agreement or a SOW is declared invalid by a court of competent jurisdiction, the remaining terms and provisions will remain unimpaired, and the invalid terms or provisions shall be replaced by such valid terms and provisions that most nearly fulfill the Parties’ intention underlying the invalid term or provision.
    7. Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns, and nothing herein is to be construed to give any legal or equitable rights to any other person or entity.
    8. No Waiver. No right created by this Agreement, or any SOW will be deemed waived unless specifically and expressly waived in a writing signed by the Party possessing the right.
    9. Governing Law and Jurisdiction. This Agreement and all associated SOWs will be governed by the substantive and procedural laws of the State of New York, without reference to its conflict of laws principles. Any suit involving any dispute or matter arising under this Agreement may only be brought in the United States District Court for the Southern District of New York or any New York State court having jurisdiction over the subject matter of the dispute or matter. The Parties hereby consent to the exercise of personal jurisdiction by any such court with respect to any such proceeding.
    10. Survival. The obligations set forth in this Agreement and each associated SOW that by their nature continue will survive any termination or expiration of this Agreement. Without limiting the generality of the foregoing, this Section 15.10, as well as the Parties’ respective duties and obligations with respect to intellectual property rights, indemnification, limitations of liability, limitations of warranties, and non-disclosure of confidential information will survive and remain in effect, notwithstanding the termination or expiration of this Agreement.
    11. Entire Agreement; Modifications. This Agreement and all associated SOWs, together with any NDA between the Parties separate from this Agreement, sets forth the entire understanding of the Parties and supersedes all prior written and oral promises and representations made by a Party, as well as all agreements and understandings between the Parties regarding the subject matter of this Agreement. Without limiting the generality of the foregoing, any requests for information, requests for proposal, service pricing outlines, responses to requests for proposals, quotes, sales and marketing collateral, welcome letters, company descriptions, and other information provided by either Party are not binding unless explicitly incorporated by reference into a SOW signed by each Party. No modification to this Agreement or to any SOW will be effective unless set forth in a Change Order or other writing signed by each Party.
    12. Execution in Counterparts; Electronic Signatures. Each SOW agreed upon by the Parties may be executed in separate counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. The Parties agree that any SOW may be executed by providing an electronic signature thereof under the terms of the Electronic Signatures Act, 15 U.S.C. § 7001 et. seq., or the New York Electronic Signatures and Records Act, NY CLS State Technology Law §301 et seq., and may not be denied legal effect solely because it is in electronic form or permits the completion of the business transaction referenced herein electronically instead of in person. Electronic signatures will be treated as acceptance of the SOW. An executed copy of the SOW, along with a copy of this Agreement as in effect on the Effective Date, will be provided to Customer upon request.
    13. Construction. Each Party, along with its respective legal counsel, has had the opportunity to review this Agreement. Accordingly, in the event of any ambiguity, such ambiguity will not be construed in favor of or against either Party.
    14. Acknowledgement and Authority. Customer acknowledges that by executing a SOW, it accepts the terms and conditions set forth in this Agreement; and Customer represents and warrants that its signatory on each SOW has full corporate power and authority to execute the SOW and to bind the Customer hereto and thereto.