1. Agreement and Exhibits. This document contains the general terms and conditions governing the relationship between the parties as part of any Services ("Services") as defined in the Task Order ("Task Order") set forth by Astra Data Solutions, Inc., (“Astra Data”) in relation to prospective client. This document is posted on the website https://astradatasolutions.com/msa and a hard or soft copy can be requested by sending an email to email@example.com. This agreement is dated 7/20/2020.
2. Term. The term of this Agreement shall begin as of the Effective Date and shall continue for a period set in aforementioned Task Order. The Term shall automatically renew for a one-year period on the anniversary of the effective date, in perpetuity, unless otherwise terminated pursuant to the provisions of this Agreement. For these renewals, service fees may increase up to 10% of the fees listed in the Task Order.
3. Termination. The parties hereto may terminate this Agreement as follows: (1) by mutual, written consent of the Parties; (2) by Company, if Customer fails to pay to Company any payments under this Agreement when due; (3) by either Party upon 30 days written notice if the other Party hereto materially breaches any term of this Agreement, and further provided that such breaching party shall fail to cure said breach within such period; (4) by either Party hereto upon written notice to the other Party hereto if a proceeding is brought by the other Party in any court or under supervision of any court-appointed officer under any federal or state bankruptcy, reorganization, rearrangement, insolvency or debt readjustment law, or if any such proceedings are instituted against the other Party and it fails to obtain dismissal of such proceeding within 30 days after the same has been instituted; or (5) by either party, with or without cause, upon 30 days’ written notice of intent to terminate to respective party; or (6) if Customer ownership is acquired by another firm, Customer will submit notice in writing 30 days prior to closing; in this case and only in this case the termination fees will be waved. After notification of termination has been submitted, Company will provide reasonable assistance to Customer to allow for the safe transition and termination of Services. In the event Customer initiates a termination prior to the end of current term, the remaining monthly fees will be due within 30 days. Termination or expiration of this Agreement shall not release any party hereto from any liability which has as of the date of such termination or expiration already accrued to the other party hereto, nor affect in any way the survival of any right, duty or obligation of either party hereto which is expressly stated elsewhere in the Agreement to survive such termination or expiration hereof.
The provisions of this Section and of the Sections entitled Warranties, Indemnification, Limitation of Liability, Confidentiality, Non-solicitation and Equitable Relief shall survive any termination or expiration of this Agreement.
4. Professional Services.
4.1 During the term of this Agreement, Company shall provide Customer the Services as defined in the Task Order. The Services shall be provided by Company in accordance with the timeline, if any, set forth in the Task Order. Customer shall satisfy all of Customer’s obligations, if any, set forth in the Task Order.
4.2 Except as otherwise provided in this Agreement, Company or its licensors own the Services and Customer shall have no proprietary rights in the Services or any software, processes, know-how, source code, source documentation, inventions, ideas and the like included within the Services, or in the intellectual property contained therein, or any documentation related to the Services. Customer shall have a personal, non-transferable and non-exclusive license to use any software and documentation provided by Company solely in connection with the Services. Customer agrees not to duplicate such software or documentation, or any part thereof, except that Customer may retain one copy for the purpose of backup. Customer agrees not to assign, sublicense, transfer, lease, rent or share any license granted to Customer hereunder, and not to reverse assemble, engineer, or decompile such software, or any part thereof, or otherwise misappropriate any of the intellectual property of Company. To the extent that any software is included in or used by Company in the performance of the Services, such software may be subject to a separate license agreement, if required by Company. Any intellectual property created or contributed by the Company, including but not limited to hardware design, software creation, custom code and data will be the sole property of the Company, unless previously and specifically provided in writing.
4.3 Except as otherwise provided in this Agreement, to the extent that Company or any third-party manufacturer specifies any preventative maintenance with respect to the Services, Customer shall be responsible for such maintenance.
From time to time, Customer may request that Company provide additional or amended Services not covered in existing Services exhibit, and the parties hereto may, but are not required to, agree to a change order for Services either by amending existing Services exhibit or by entering into a new Services exhibit. Such change order, if executed, will specify the Services to be provided by Company and terms for such Services, including, but not limited to, price terms.
4.4 Any services, products, or parts not explicitly listed in the Task Order are not covered by any support or agreements.
5. Designated Project Manager. Each of Company and Customer shall designate, in writing, one individual to serve as its project manager (each a “Project Manager”).
6. Reporting Requirements. During the term of this Agreement, Company shall provide Customer with such oral or written reports as described in the Task Order.
7. Compensation. Customer shall compensate Company for the Services in accordance with the terms and payment schedule set forth on the Task Order. Customer shall make payments to Company in accordance with such payment schedule and within fifteen (15) days after receipt of an invoice, provided that the invoice reflects the appropriate amount for payment and detail for Services performed or pre-approved expenses incurred. Customer shall also pay any sales, use, value-added, or other tax or charge imposed by any governmental entity upon the sale, use or receipt of the Services. Late payments shall accrue interest at the rate of three percent (3%) per month, or the maximum rate allowed by applicable law, whichever is lower. Except as expressly set forth in this Agreement, Company shall be responsible for all expenses incurred by Company under this Agreement.
8.1 To the extent that any products or materials are to be installed by Company, Company shall install such products or materials as specified in this Agreement. Installation dates are estimates only. Customer shall be responsible for preparation and maintenance of the site for such installation, including, but not limited to, providing necessary electrical power and communication lines and proper air conditioning and humidity control. If Company is providing hosting services Company will perform all preparations and maintenance of hosting location.
8.2 Company is not responsible for any fees, bills or equipment failures that are caused by the client or any other company or individual. No software, equipment, or peripherals may be installed without Company’s knowledge and/or permission as certain items can cause problems on the network or IT infrastructure. Company is not responsible for any training or lost productivity due to incorrectly installed or configured equipment by anyone other than Company employees. Any support or service time that provided by Company due to these issues will result in the client being billed separately for the time provided.
9.1 Company hereby warrants that the Services provided, and any products or materials installed by Company shall be performed or installed by Company in a workmanlike manner, consistent with generally prevailing industry standards, and in compliance with the requirements of this Agreement.
9.2 COMPANY MAKES NO WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED ON ITS OWN REGARDING THE FUNCTIONALITY OF HARDWARE OR SOFTWARE, BUT INSTEAD RELIES ON THE WARRANTIES PROVIDED BY THE MANUFACTURER OF EACH SUCH PRODUCT.
9.3 EXCEPT AS STATED IN THIS AGREEMENT, COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, INTEROPERABILITY, AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. COMPANY DOES NOT WARRANT THE WORK AND SERVICE PROVIDED HEREUNDER WILL BE UNINTERRUPTED AND/OR ERROR FREE. COMPANY DOES NOT MAKE AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES AGAINST LOSS OF DATA, SECURITY BREACHES, THIRD PARTY INTERRUPTION OR INTERFERENCE WITH DATA OR NETWORKS, AND EXPOSURE OR RELEASE OF PERSONALLY IDENTIFIABLE INFORMATION, REGARDLESS OF CAUSE. ALL WARRANTIES PROVIDED HEREIN ARE PERSONAL TO, AND INTENDED SOLELY FOR THE BENEFIT OF CUSTOMER, AND DO NOT EXTEND TO ANY THIRD PARTY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CUSTOMER ACKNOWLEDGES THAT COMPANY SHALL BEAR NO RESPONSIBILITY FOR THE PERFORMANCE, REPAIR OR WARRANTY OF ANY OF CUSTOMER’S SOFTWARE, HARDWARE PRODUCTS OR SERVICES PROVIDED TO CUSTOMER OR BY A THIRD PARTY, UNLESS OTHERWISE SET FORTH HEREIN.
9.4 All warranties set forth in this Agreement shall be null and void if the products or materials manufactured or created by Company are: (1) altered, modified or repaired by persons other than Company or persons approved by Company, including, without limitation, the installation of any attachments, features or devices not supplied or approved by Company; (2) misused, abused or not operated in accordance with specifications of Company or the manufacturers or creators of the products or materials by persons other than Company or persons approved by Company; or (3) subjected to improper site preparation or maintenance by persons other than Company or persons approved by Company. Company shall not be responsible for any malfunction, nonperformance or degradation of performance of any products or materials manufactured or created by Company caused by or resulting directly or indirectly from installation by Customer, any alteration, modification or repair that was not made by Company or persons approved by Company or any causes external to such products or materials, such as, but not limited to, power failures and surges. Customer shall comply at all times with all applicable specifications, laws, regulations and ordinances relating to its use of such products or materials. To the extent that such products or materials are manufactured or created by any third party, the warranties related to such products or materials come solely and exclusively from such third party.
10. Indemnification. If the Services or any of the products or materials manufactured or created by Company are proven to infringe a third party’s trademark, patent, copyright or other intellectual property right, or Company determines that any of the Services or such products or materials shall infringe such rights, or Customer is enjoined from using any of such products or materials, or any part of same, then Company, at Company’s expense and sole option, shall (1) replace such infringing Services, products or materials with non-infringing, equivalent and conforming services, products or materials, (2) modify such infringing Services, products or materials, so such Services, products or materials become non-infringing, but continue to provide the same type and quality of performance and services, or (3) procure the right for Customer to continue using such infringing Services, products or materials. This Section shall not apply to any products or materials manufactured or created by any third party or manufactured or created by Company to Customer’s design or specifications. This Section shall also not apply to the extent the claim of infringement is caused by Customer’s misuse, abuse or modification of any products or materials, Customer’s failure to use corrections or enhancements made available by Company, or Customer’s use of such products or materials in combination with any attachments, features or devices not supplied or approved by Company. This Section states the entire liability of Company and the exclusive remedy of Customer for infringements by Services or any products or materials.
11. Limitation of Liability. IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER, ANY EMPLOYEE, AGENT OR CONTRACTOR OF CUSTOMER, OR ANY THIRD PARTY, FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. COMPANY’S LIABILITY TO CUSTOMER UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO COMPANY PURSUANT TO THIS AGREEMENT FOR THE SERVICES DURING THE PRECEDING TWELVE (12) MONTHS.
12.1 “Confidential Information” of a party hereto shall be deemed to include all information, materials and data disclosed or supplied by such party (“Disclosing Party”) to the other party hereto receiving such information (“Receiving Party”), should be considered confidential unless otherwise noted. If disclosed in written or other tangible form or electronically as well as orally or visually, Confidential Information shall be marked by Disclosing Party as “Confidential”.
12.2 The following information shall not be considered Confidential Information hereunder: (1) information of Disclosing Party that is or becomes generally known within the relevant industry through no wrongful act or omission of Receiving Party or breach by Receiving Party of its obligations under this Agreement; (2) information which Receiving Party can establish and document by contemporaneous written proof was in the possession of or known by such party prior to its receipt of such information from Disclosing Party, without any obligation of confidentiality to Disclosing Party; (3) information that is rightfully disclosed to Receiving Party by a third party with no obligation of confidentiality to Disclosing Party; and (4) information which is independently developed by Receiving Party without use of or reference to Confidential Information of Disclosing Party, with Receiving Party bearing the burden of proving such independent development.
12.3 Confidential Information of Disclosing Party may not be used by Receiving Party for any purpose except in the performance of Receiving Party’s obligations on behalf of Disclosing Party under this Agreement. Receiving Party shall maintain the confidentiality of all of Disclosing Party’s Confidential Information disclosed to Receiving Party hereunder and shall not disclose such Confidential Information to any person or entity, except as provided in this Agreement.
12.4 To the extent Receiving Party is required to disclose Confidential Information of Disclosing Party pursuant to any court or regulatory order, Receiving Party shall promptly notify Disclosing Party in writing of the existence, terms and circumstances surrounding such disclosure so that Disclosing Party may seek a protective order or other appropriate remedy from the proper authority. Receiving Party agrees to cooperate with Disclosing Party in seeking such order or remedy. Receiving Party further agrees that if Receiving Party is required to disclose Confidential Information of Disclosing Party, Receiving Party shall furnish only that portion of Confidential Information that is legally required and shall exercise all reasonable efforts to obtain reliable, written assurances that confidential treatment shall be accorded Confidential Information.
12.5 Receiving Party shall promptly return to Disclosing Party all correspondence, memoranda, papers, files, records and other tangible materials embodying Disclosing Party’s Confidential Information or from which such information may be derived, including all copies, extracts or other reproductions thereof, when Receiving Party no longer needs such Confidential Information to accomplish the performance of Receiving Party’s obligations on behalf of Disclosing Party under this Agreement or when Disclosing Party requests its return, whichever occurs first, or certify to Disclosing Party that all such materials have been destroyed if Disclosing Party requests such destruction.
12.6 Upon termination or expiration of this Agreement, for whatever reason, each of the parties hereto shall immediately cease using any and all Confidential Information of the other party hereto, unless specifically authorized in writing by such other party, and shall promptly return to such other party any and all of such information in its possession, and shall not publish or reveal, use or divulge, directly or indirectly, any of such information unless specifically authorized, in writing, by such other party. Without limiting the generality of the foregoing, the obligation to promptly return Confidential Information shall include, but not be limited to, the obligation to promptly erase any and all of such Confidential Information, and all images, compilations, copies, summaries or abstracts of such information, from computer storage, systems and related storage devices, tools and servers.
13. Non-Solicitation. During the term of any Service Agreement, and for a period of 6 months thereafter, each Party agrees not to, directly or indirectly, solicit, recruit or employ any employee of either Party without the prior written consent of the other.
14. Equitable Relief. A breach of Section 12 or Section 13 hereof by a party hereto cannot reasonably or adequately be compensated in damages in an action at law and shall cause irreparable harm and significant injury and damage to the other party hereto. By reason thereof, the non-breaching party shall be entitled, in addition to any other remedies it may have under this Agreement or otherwise, to seek and obtain immediate preliminary, interim and permanent injunctive or other equitable relief to prevent or curtail any actual or threatened breach of such Sections.
15. Notices. All notices, demands and communications required or permitted in connection with this Agreement shall be in writing and shall be deemed effectively given in all respects upon personal delivery, email, or, if mailed, by registered or certified mail, postage prepaid, return receipt requested, or by overnight courier, the receipt of which is confirmed, addressed to the party hereto at the address set forth on the Cover Page of this Agreement (or such other address for a party as shall hereafter be specified by like notice). Either party hereto may from time to time change its notification address by giving the other party hereto prior written notice of the new address and the effective date thereof.
16. Relationship of the Parties. Company is an independent contractor of Customer. Neither Party shall be the employee or agent of the other.
17. Successors and Assigns. This Agreement shall benefit and be binding upon the parties hereto and their respective successors and assigns.
18. Force Majeure. Any delay or failure of a Party to perform its obligations will be excused if and to the extent that it was caused by an event or occurrence beyond such Party’s reasonable control and without its fault or negligence (“Force Majeure”). A party claiming Force Majeure must provide the other Party with written notice of such delay (including the anticipated duration of the delay) within ten (10) days of the occurrence of Force Majeure event.
19. Modification or Waiver. Astra Data may amend any provision of this Agreement.
20. Promotion. Company may, in its public advertising and promotional materials, reference Customer and the services provided to Customer, subject to Customer’s prior approval of said promotional materials, which approval shall not be unreasonably withheld.
21. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without reference to its principles of conflicts of laws. Both Parties consent to the exclusive jurisdiction and venue of any court within the County of Nassau, NY specified in connection with any dispute arising out of, or in connection with this Agreement. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be Nassau County, NY. New York law shall apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Any legal fees incurred due to any legal actions related to this agreement are the responsibility of Customer.
22. Severability. In the event that any provision of this Agreement, or any word, phrase, clause, sentence or other provision thereof, should be held to be unenforceable or invalid for any reason, such provision or portion thereof shall be modified or deleted in such a manner so as to make this Agreement as modified legal and enforceable to the fullest extent permitted under applicable laws.
23. Entire Agreement. This Agreement and any attachments thereto constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, purchase orders, understandings and negotiations, whether oral or written, between the parties with respect to such subject matter.
24. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument.
25.1 Should any work include security scanning, testing, assessment, forensics, or remediation Services (“Security Services”), Customer understands that Astra Data Solutions may use various methods and software tools to probe network resources for security-related information and to detect actual or potential security flaws and vulnerabilities. Customer authorizes Astra Data Solutions to perform such Security Services (and all such tasks and tests reasonably contemplated by or reasonably necessary to perform the Security Services or otherwise approved by Customer from time to time) on network resources with the IP Addresses identified by Customer. Customer represents that, if Customer does not own such network resources, it will have obtained consent and authorization from the applicable third party, in form and substance satisfactory to Astra Data Solutions, to permit Astra Data Solutions to provide the Security Services. The Security Services, such as penetration testing or vulnerability assessments, may also entail buffer overflows, fat pings, operating system specific exploits, and attacks specific to custom coded applications but will exclude intentional and deliberate Denial of Service Attacks. Furthermore, Customer acknowledges that the Security Services described herein could possibly result in service interruptions or degradation regarding the Customer’s systems and accepts those risks and consequences. Customer hereby consents and authorizes Company to provide any or all the Security Services with respect to the Customer’s systems. Customer further acknowledges it is the Customer’s responsibility to restore network computer systems to a secure configuration after testing.
25.2 Should any work include compliance testing or assessment or other similar compliance advisory Services (“Compliance Services”), Customer understands that, although Astra Data Solutions' Compliance Services may discuss or relate to legal issues, Astra Data Solutions does not provide legal advice or services, none of such Services shall be deemed, construed as or constitute legal advice and that Customer is ultimately responsible for retaining its own legal counsel to provide legal advice, Furthermore, any written summaries or reports provided by Astra Data Solutions in connection with any Compliance Services shall not be deemed to be legal opinions and may not and should not be relied upon as proof, evidence or any guarantee or assurance as to Customer’s legal or regulatory compliance.
25.3 Customer understands that Company’s Services do not constitute any guarantee or assurance that security of Customer’s systems, networks, and assets cannot be breached or are not at risk. These Services are testing or maintaining to whether Customer’s systems, networks and assets, and any compensating controls meet the applicable standards. Mere compliance with standards may not be sufficient to eliminate all risks of a security breach of Customer’s systems, networks and assets. Furthermore, Astra Data Solutions is not responsible for updating its point-in-time project reports and assessments or enquiring as to the occurrence or absence of such, in light of subsequent changes to Customer’s systems, networks and assets after the date of Company’s final report, absent a signed proposal expressly requiring the same.
26. Other Considerations.
26.1 Normal hours of operations: remote support is available from 8am to 5pm M-F ET. Onsite support is operated from 9am to 5pm, as available, M-F ET.
26.2 Off Hours adjustments. Any work done outside of normal operating hours, as above, will incur a 30% increase in hourly rate.
26.3 Licenses and other third-party subscription fees for products will be billed to client.
26.4 Pre-paid time expires annually. Support block hours are for use on support issues only, no project work. Hours expire and renew monthly, there is no rollover accumulation time.
26.5 Travel time and costs are not billable. However, any fees, fines, or other penalties incurred by our staff in the process of Services being rendered will be the responsibility of the client.
26.6 Operating Systems, Microsoft Office Suite, and other common desktop software are fully supported by technical support. All other software is covered as “best effort”.
26.7 Expenses incurred for fulfillment of this contract, such as but not limited to, toner/ink cartridges, cables (in excess of contracted services), computer components (in excess of contracted services), etc. will be billed on the next month’s billing cycle.
27. Client Obligations
27.1 Allocating a time for implementation of onsite agents
27.2 Providing information, such as administrative passwords, network diagrams, etc. to be stored, securely by Astra Data.
27.3 Setting a weekly 4-hour maintenance window for all systems.