This Master Services Agreement (“Agreement” or “MSA”) is made on DATE between SYAND Corporation, a Minnesota Corporation with an address of 1551 Southcross Drive W, Suite 100, Burnsville, MN 55306 (“SYAND”), and YOUR ORGANIZATION, a YOUR ORGANIZATION ENTITY with an address of YOUR PRIMARY ADDRESS (“Client” or “You”)(collectively, “Parties” and individually “Party”).
This MSA governs Products or Services provided to Client by SYAND as set forth in an Addendum or Statement of Work (“Addendum” or “SOW”). This MSA shall be supplemented by SOWs, each of which must be executed by both Parties and thereupon shall be deemed incorporated in this MSA. SOWs will be substantially in the form of the attached Exhibit A. The Parties may execute multiple SOWs under this MSA. In the event of any conflict between the terms of an SOW and those of this MSA, the terms of the applicable SOW shall prevail except as it relates to Limitation of Liability.
DEFINITIONS
Definitions are provided for commonly used terms throughout this Agreement.
Statement of Work
SOW means the customized managed services and/or Products to be provided to Client by SYAND. Additional terms may be defined in each Addendum.
Services
“Services” means the managed services, monitoring and support services provided to Client, either pursuant to an Addendum to this Agreement or by request which is confirmed in writing or email and in the quantities and timeframe indicated in the specific Addendum.
Product
“Product” means all equipment, hardware, software, material provided to Client pursuant to an Addendum to this Agreement in the quantities and timeframe indicated in the specific Addendum.
Deliverables
“Deliverables” means the combination of Services and Products as delivered by SYAND to Client.
ENGAGEMENT FOR SERVICES
Services
Client engages SYAND to perform the services and provide the services described in each Addendum to this Agreement, whether signed at the same time as this Agreement or thereafter. Services not covered by an Addendum will be at SYAND’s standard rates, including reasonable travel and miscellaneous expenses. SYAND will use reasonable efforts to notify Client in advance and in writing of such costs prior to services being rendered and costs incurred. In each SOW, Client shall designate and appoint a primary point of contact within Client’s control to facilitate communications and provide direction to SYAND for the work detailed in the SOW. For the terms and conditions of this MSA and for any SOW that is silent as to a primary point of contact, the signatory below shall serve as the primary point of contact. Acceptance of services under this Agreement or any Addendum or SOW to this Agreement shall be deemed acceptance of this Agreement and agreement to be bound by the terms of this Agreement.
FEES AND EXPENSES
Service Fees
Client shall pay SYAND the fees set forth in each SOW for the Services and Product. SYAND will invoice Client for Services provided under the Agreement, including any fees for Products or Services not covered by a SOW which shall be paid in accordance with the payment terms in the SOW. If any SOW does not specify payment terms, payment shall be made within 15 days of the date of the invoice.
Overdue Balances and Taxes
Any invoices overdue by more than ten (10) calendar days of invoice date incur a late charge of 1.5% per month, not to exceed the maximum charge permitted by law. Client agrees to be responsible for any and all taxes or other levies imposed by any government, governmental unit or similar authority on any of the Services and/or Products provided to Client under this Agreement, excluding SYAND’s income taxes
TERM AND TERMINATION
Term
This MSA will begin on the Effective Date, which is the date You sign this MSA and shall continue thereafter until all SOWs have expired and/or terminated (whichever is sooner). Either Party may terminate, upon written notice of a non-breaching Party (“Non-Defaulting Party”) to the breaching Party (“Defaulting Party”) if Defaulting Party:
Is insolvent, subject to a bankruptcy or state law equivalent, makes an assignment for the benefit of creditors, has a receiver appointed by a court or admits to being unable to pay its obligations when due; and/or;
Is in material breach of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice from the Non-Defaulting Party.
Syand may terminate this agreement with sixty (60) days written notice for any reason. If Client’s fees remain unpaid for a period exceeding ten (10) days, SYAND may, upon written notice to Client, suspend Client’s Services or a portion thereof until such fees are paid. Client may have additional termination rights for certain services, as set forth in the SOW.
Termination Duties
Upon any termination of the right to use a Product, Client will immediately uninstall (if the Product is software) and cease to use the terminated Product and, upon SYAND's written request, immediately return such Product to SYAND, together with all related documentation, and copies thereof. Upon written request of SYAND, Client will promptly certify in writing to SYAND that all copies of the Product have been returned, and that any copies not returned have been destroyed. Notwithstanding any provision to the contrary, If an SOW is terminated, Client shall promptly pay SYAND for Products delivered and Services rendered, and expenses incurred through the termination date. SYAND may terminate any license granted for a Deliverable (as defined below) if: (i) Client does not pay SYAND for that Deliverable in accordance with this MSA; or (ii) if Client materially breaches any part of this MSA.
SYAND IS NOT RESPONSIBLE FOR DAMAGES THAT MAY RESULT DUE TO SUSPENSION OR TERMINATION OF SERVICES BY SYAND DUE TO CLIENT NON-PAYMENT OF FEES. SYAND MAY ASSIST CLIENT IN THE TRANSITION OF SERVICES, INCLUDING TRANSFER OF THE SERVICES TO ANOTHER DESIGNATED PROVIDER.
Client agrees to pay the actual costs of rendering such assistance. SYAND will not retain any data stored for Client after the termination date. The term for each SOW shall be as outlined in each SOW. For the avoidance of doubt, this agreement shall continue in full force and effect during any time in which there is one or more SOW’s between the Parties in effect.
WARRANTIES, LIMITATION OF LIABILITY, LIMITIATION OF REMEDY, CONFIDENTIALITY, INSURANCE, THIRD PARTY PRODUCTS, INDEMNIFICATION, DECLINED PRODUCTS AND SERVICES, AND DISCLAIMER
Warranties
SYAND warrants the Services will be performed by staff and technicians of SYAND qualified to render the Services. Client's sole and exclusive remedy for a breach of this warranty, shall be to terminate the SOW pursuant to a written notice, provided Client has first notified SYAND of the breach in writing and permitted SYAND a reasonable period of time of at least 30 days to cure such breach. The foregoing remedy shall not be available if Client fails to provide a written notice of such breach within 30 days after delivery of the services to Client. The above limited warranty will not apply to the extent Client, its contractors or agents have modified any Deliverables, unless otherwise authorized by SYAND in writing.
SYAND MAKES NO WARRANTY FOR ANY PRODUCT AND CLIENT SHALL RELY UPON THE WARRANTY OF THE MANUFACTURER OF PRODUCTS. SYAND MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED.
SYAND cannot guarantee that: (a) the services will be performed error-free or uninterrupted, or that SYAND can correct all services errors; (b) that data will be free of any attempted or successful cyber related breach or (c) the services will operate in combination with any other hardware, software, systems, services or data not provided by SYAND. Client acknowledges that SYAND does not control the transfer of data over communications facilities, including the internet, and that the services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities which SYAND is not responsible for. Client warrants that Client, and Client’s representatives signing below, are authorized to enter into this Agreement on behalf of Client and that the Services provided by SYAND under this Agreement will not violate the terms of any agreement Client has with any Third Parties.
Third Party Products
Some Services provided under this Agreement may require Third-Party Products, as specified in each SOW. Client agrees to enter into any Third-Party Agreements necessary for the use and functioning of such Third- Party Products. Client agrees to comply with all terms of any Third Party’s Agreement for the Third-Party Products. SYAND shall not be responsible for non-compliance with the terms and conditions of such agreements and does not provide any warranty on any software or equipment sold that was manufactured, created or provided by any Third Party.
No Other Warranties
There are no warranties or representations except as set forth in the Agreement.
FOR DELIVERABLES, ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED.
Exclusion of Damages
Client agrees that SYAND will not be responsible for any liability for certain Client actions including but not limited to; misuse or alteration of deliverables; Client’s failure to use or implement corrections to deliverables; Client’s failure to use SYAND Deliverables with equipment, hardware, software or material not provided or approved of by SYAND. To the maximum extent permitted by applicable law in no event shall SYAND be liable to client, even if SYAND has been advised of the possibility thereof, for any indirect, special, incidental, punitive or consequential damages of any nature, including but not necessarily limited to, lost data, damages for interruptions, lost profits arising out of or related to this agreement lost revenues, or lost market value.
Limitation of Liability
SYAND’S maximum liability under this agreement, including any SOW’S shall be the total amount of fees received by SYAND during the preceding six (6) months pursuant to the SOW for which the event gave rise to the damages sought. Notwithstanding any provision to the contrary, SYAND shall have no liability for any Product or Service offered to client during the term which such product or service was declined by client.
Recommendations
During the Term, SYAND will make recommendations from time to time regarding security products and services for Client, in line with reasonable best IT and security practices, including risks associated with various solutions. However, responsibility to accept, reject, or change such solutions ultimately resides with the Client, not SYAND. Client understands and agrees that no security solution is 100% faultless or perfect in all situations, that failure to implement SYAND recommendations could result in a less secure IT environment, and that implementation of the Services under this Agreement is not a guarantee that security incidents or breaches will not occur. SYAND may, in its discretion, request that Client sign a written document reflecting the recommendations that the Client has or has not elected to implement, and such document will serve as express evidence of solutions not implemented by SYAND.
Confidentiality and Data
Each Party shall treat the information received from the other Party that is designated as confidential or otherwise so identified, and/or any information that by its form, nature, content or mode of transmission would to a reasonable recipient be deemed confidential or proprietary ("Confidential Information") as and not disclose or use such Confidential Information except in the performance of this Agreement. Each Party agrees to use the same degree of care that it maintains with regard to its own information of similar or like importance. SYAND designates the Services, all information relating to the Services and the financial terms of this Agreement as Confidential Information. Both Parties shall: (i) restrict disclosure of Confidential Information to employees and agents solely on a "need to know" basis; (ii) advise employees and agents of their confidentiality obligations; (iii) protect the confidential information of the disclosing Party in the manner the disclosing Party would protect such information; (iv) notify the other of any unauthorized possession or use of that Party’s Confidential Information as soon as practicable after receiving notice of same; and (v) if either Party is legally compelled in any litigation, administrative, or similar proceeding to disclose the other Party’s Confidential Information, such Party shall immediately notify the other Party and reasonably cooperate with the other Party to seek a protective order for such Confidential Information, at the other Party’s expense. Notwithstanding the foregoing, neither Party shall be obligated to preserve the confidentiality of any information which: (i) was previously known; (ii) is a matter of public knowledge; (iii) was or is independently developed by the recipient; (iv) is released for disclosure with written consent; (v) is received from a Third- Party to whom the information was disclosed without restriction; or (vi) disclosed by the non-receiving Party to other persons without similar restriction.
Client agrees that Client is solely responsible for backing up data prior to repairs being performed by SYAND. SYAND will, at Client’s advance written request and at an additional fee, use reasonable means to back up data prior to SYAND repairs. Upon termination of this Agreement, SYAND will, to the extent practicable, return Client data and Confidential Information to Client, or, destroy the Confidential Information. If return of Confidential Information is not feasible, SYAND will extend the Confidentiality protections of this Agreement indefinitely to such Confidential Information. Client agrees that SYAND shall only be responsible to backup any Client data, content or software if Client has an applicable SOW.
Indemnification
Client agrees to indemnify, defend, and hold harmless SYAND and its Affiliates against any losses, damages, liabilities, assessments, costs, charges, or claims arising out of a breach of the Agreement by Client including reasonable attorneys’ fees, and any claims brought by Third Parties related to the Agreement and services rendered thereunder. Client shall indemnify SYAND against any claim that any data, materials, items or information supplied to SYAND under the Agreement infringes any US patent, copyright, trademark or licensing within the jurisdictions where SYAND is provided with such information.
Insurance
During the term of this MSA, each Party shall, at their own expense, maintain and carry insurance with financially sound and reputable insurers, in full force and effect that includes, but is not limited to, commercial general liability in a sum no less than $1,000,000 per occurrence with financially sound and reputable insurers. Each Party shall also maintain cyber liability coverage and workers compensation insurance as required by law. Each party shall provide a certificate of insurance from its insurer evidencing the insurance coverage specified in this MSA.
Mutual Non-Solicitation
During the term of this MSA, and for a period of six (6) months thereafter, neither Party will solicit for employment any employees of the other Party who, within six (6) months prior to such solicitation: (a) directly performed under this MSA; (b) had substantial contact with the hiring Party in relation to this MSA; or (c) the hiring Party became aware of due to, or derived from information learned through the performance of, this MSA. For this purpose, "solicitation" does not include contact resulting from indirect means such as public advertisement, placement firm searches or similar means not directed specifically at the employee to which the employee responds on his or her own initiative. The Parties acknowledge and agree that a breach of this “Non-Solicitation” clause will give rise to damages to the other Party and that, as liquidated damages to compensate the non-breaching Party for the search, recruitment, replacement recruitment, training and other expenses, the breaching Party shall pay 6 months of the employee’s compensation to the non-breaching Party as damages for breaching this non-solicitation covenant.
USE OF SERVICES
Patches and Updates
Client agree to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Patches”) necessary for the proper function and security of the Services, including for the Software and applicable Third- Party Software. SYAND is not responsible for performance or security issues encountered with the Services that result from Client’s failure to accept the application of Patches that are necessary for the proper function and security of the Services, or for any performance or security issues encountered with the Services that result from a Patch provided by a Third Party.
Software and Hardware
Client agrees to upgrade all hardware (including computers, servers, and monitors) and software in accordance with the requirements outlined in any SOW. Client acknowledges that SYAND shall not be required or obligated to support or provide Services for any hardware or software that has not been updated in accordance with the SOW’s (“Unsupported Services”). SYAND may, in its sole discretion, offer to provide support at its hourly consulting services rates, which may vary from time to time, for Unsupported Services. Client understands and agrees that SYAND will only provide Services support for Product currently supported by the developer or manufacturer, unless expressly agreed otherwise in an SOW. SYAND may, its discretion, make efforts to notify Client if a Product will become unsupported by the developer or manufacturer. Client agrees that any services provided for unsupported product will be subject to SYAND’s Consulting Services rates for such services. Client agrees to maintain a warranty for all Products throughout the term of this Agreement.
Audit
During the term of this Agreement and for twelve (12) months after termination, SYAND may audit Client’s use of the Services (e.g., through use of software tools) to assess whether Client’s use of the Services is in accordance with the Agreement. Client agrees to cooperate with SYAND’s audit and provide reasonable assistance and access to information.
GENERAL MATTERS
Governing Law
The Agreement is governed by the laws of Minnesota, without reference to any choice-of-law provisions. Client must bring all causes of action arising from or related to this Agreement in the state or Federal Courts located in Hennepin County, Minnesota The Agreement is to be construed without giving force to any presumption or rule requiring construction or interpretation against the drafting Party.
Client must bring all causes of action arising from or related to this Agreement within one (1) year after the first date of performance or breach which in whole or in part gives rise to the claim.
Assignment
Client may not assign the Agreement or any right or obligation of the Agreement (including by merger, asset sale, or sale of 51% or more of the ownership of Client), without the prior written consent of SYAND.
Attorney Fees
The prevailing Party in any legal cause of action brought by SYAND or Client arising out of or relating to this Agreement will be entitled to its costs in conducting the action, including reasonable attorneys' fees and expenses and court costs.
Waiver of Jury Trial
SYAND and Client irrevocably and unconditionally waive any right they may have to a trial by jury for any cause of action arising out of the Agreement.
Rights of Parties; Survival
Termination of the Agreement shall not relieve any liability or obligation of a Party accrued prior to termination. The obligations of the Parties set forth in Articles Four, Five, Six and Seven herein shall survive and continue after termination of the Agreement.
Force Majeure
A Party shall not be liable for any failure of or delay in the performance of the Agreement for the period that such failure or delay is due to causes beyond its reasonable control that make it impossible for commercially impractical to perform, including, but not limited to, acts of God, war, strikes or labor disputes, embargoes, government orders, pandemics, epidemics, or any other force majeure event. SYAND and Client will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 90 days, either SYAND or Client may cancel unperformed Services under the Agreement. This Section does not excuse Client’s obligation to pay the fees set forth in the SOW.
Amendment, Successors, Severability and Waiver
No provision of the Agreement may be amended or modified, except in writing, signed by all Parties to the Agreement. All provisions of the Agreement bind, inure to the benefit of, and are enforceable by and against the respective heirs, executors, personal representatives, successors, and permitted assigns of any of the Parties to the Agreement.
A Party's failure to exercise or delay in exercising any right, power or privilege under this Agreement shall not operate as a waiver; nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof. The invalidity or unenforceability of any provision of the Agreement does not affect the validity or enforceability of any other provision of the Agreement. If a court of competent jurisdiction determines that any provision is invalid, the remaining provisions of the Agreement are to be construed as if the invalid provision had never been included in the Agreement.
Entire Agreement
The Agreement constitutes the entire agreement of the Parties with respect to the Agreement’s subject matter and supersedes all prior written and oral agreements and representations with respect to the subject matter.
The Agreement may be signed in any number of counterparts, each of which will be deemed an original.
EXHIBIT A STATEMENT OF WORK
EXHIBIT B
SYAND CONFIDENTIALITY AND DATA PROTECTION POLICY
1. Non-Disclosure
Without limiting the applicability of any other agreement to which SYAND or Client is subject, SYAND and Client may not directly or indirectly disclose or use any Confidential Information at any time during or after the Term of the Agreement. This restriction includes the use of Confidential Information for personal, commercial, or proprietary advantage or profit. SYAND and Client shall take appropriate steps to safeguard the information and to protect it against disclosure, misuse, espionage, loss, and theft. Upon a Party’s request, the other Party will promptly return or destroy all copies of the Confidential Information.
2. Confidential Information
For purposes of the Agreement “Confidential Information” means any and all information related to the business of a Party that is treated as confidential or secret by the Party (i.e., it is the subject of efforts by the Party that are reasonable under the circumstances to maintain its secrecy) and which is labeled or otherwise identified as confidential or secret by the disclosing Party prior to or at the time of disclosure to the other Party. Each Party agrees not to use any Confidential Information of the other Party other than in support of the receiving Party’s obligations under any Agreement between the Parties unless the disclosing Party has expressly granted the right to use such Confidential Information for another purpose. Each Party further agrees to protect the Confidential Information of the other Party in its possession against disclosure to third Parties using the same degree of care as the receiving Party uses to protect its own proprietary and confidential information, but at least reasonable care.
The restrictions on use and disclosure of Confidential Information will not apply to information which:
(i) is already lawfully known to or independently developed by the receiving Party
(ii) is or subsequently becomes generally known to the public without fault of the receiving Party
(iii) is lawfully obtained from any third Party without any obligation of confidentiality, or
(iv) is required to be disclosed by law.
3. Safeguarding Confidential Information
SYAND and Client shall take appropriate steps to safeguard the Confidential Information and to protect it against disclosure, misuse, espionage, loss, and theft. SYAND and Client must not use, reproduce, or store Confidential Information on a computer or electronic device that may be accessible to persons to whom disclosure is prohibited under the Agreement.
Client shall not provide SYAND access to health, payment card or similarly sensitive Confidential Information that imposes specific data security obligations for the processing of such data unless otherwise specified in the Agreement.
4. Required Disclosures
If SYAND or Client is required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigation, demand, or similar process from a governmental authority, agency, or tribunal) to disclose any Confidential Information, SYAND or Client shall promptly notify the other Party of the request so that the other Party may seek a protective order or other appropriate remedy. SYAND or Client shall cooperate with the other Party with respect to any such proceeding.
