Master Services Agreement

This Master Services Agreement (“Agreement”) is by and between Portsmouth Computer Group, LLC, d/b/a PCGiT (“PCG” or “Company”) and Client. Company and Client shall collectively be the “Parties” and individually a “Party”.

This is a master agreement that governs all services that we perform or provide to Client (collectively, the “Services”). The scope, terms, and fees charged for the Services will be described in each Services Addendum (each an “Addendum”) and one or more proposals, quotes or statements of work that we provide to Client (each, a “SOW”). A SOW may be accepted electronically or by physically signing it and, once Client and we mutually agree to a SOW, the SOW will automatically become a part of, and governed under, the terms of this Agreement.

If there is a material difference between the language in a SOW and the language in this Agreement, then the language of the SOW will control, except in situations involving warranties, limitations of liability, or termination of this master agreement. Under those limited circumstances, the terms of this Agreement will control unless the SOW expressly states that it is overriding the conflicting provisions of this Agreement.

1. Definitions

“Services” means the services that Company agrees to provide to Client as expressly set forth in this Agreement.

“System” means, collectively, any computer network, computer system, peripheral or device installed, maintained, monitored, or operated by us pursuant to a SOW. To avoid a delay or negative impact on our provision of the Services, during the term of each SOW Client agrees to refrain from modifying or moving the System, or installing software on the System, unless we expressly authorize such activity.

“Client Users” or “Users” means the individuals associated with Client who are authorized to use the Services.

2. Term, Services, and Billing

This Agreement between Company and Client is effective upon the date signed and shall remain in force for years (“Initial Term”), to be three (3) years if not otherwise specified in this paragraph. This Agreement automatically renews for a subsequent one (1) year period beginning on the day immediately following the end of the Initial Term (each a “Renewal Term”), unless either party gives the other party sixty (60) days prior written notice of its intent not to renew this Agreement. During the Initial Term set forth in each SOW, the fees due hereunder (subject to changes in user counts and/or Services being provided, shall be as set forth in the Scope of Work (“SOW”). If a SOW does not include a fee schedule, then Client agrees to pay Company on an hourly basis pursuant to Company’s then-current standard hourly rate schedule. All Company invoices are due immediately upon receipt. Client must pay such invoice via ACH, credit card, or other payment method(s) (if any) offered by Company from time to time. 2.0% interest monthly (or the maximum amount allowed by law, if less), shall accrue on unpaid fees hereunder. Client shall be solely responsible for any taxes arising out of this Agreement (excluding taxes on the income of Company).

3. Termination

Company may terminate this Agreement at any time, with or without cause, upon sixty (60) days prior written notice to Client.

Client may terminate this Agreement upon sixty (60) days written notice. An Early Termination Fee may apply.

Either Party may terminate this Agreement, upon written notice to the other party, if there is a breach of this Agreement, provided however, that such Party must provide the other party with thirty (30) days written notice of the breach and a thirty (30) day opportunity to cure such breach.

If there is no active SOW between the Parties, either Party may terminate this Agreement upon thirty (30) days written notice to the other Party.

Company and Client may mutually consent, in writing, to terminate a SOW or this Agreement at any time.

Company reserves the right to terminate or suspend the Services being provided under this Agreement upon written notice to Client in the event of breach of any term or condition of the Agreement. In addition, if Client ceases to pay any charges associated with any Services, terminates or suspends its business operations, is insolvent, or enters into bankruptcy or receivership (voluntarily or involuntarily), Company may suspend or terminate the Agreement upon written notice to Client. Company is not responsible for damages that may result due to suspension or termination of services by Company due to Client non-payment of fees.

If either party terminates this Agreement, Company may assist Client in the orderly termination of services, including timely transfer of the services to another designated provider. Client agrees to pay the actual costs of rendering such assistance. Company will not retain any data stored for Client after the Termination Date, unless required to retain by law.

4. Support, Point of Contact Requirements, and Cooperation

Company will provide reasonable quantities of telephone or on-line support during normal support hours as more fully described in the Scope of Work. Client understands and agrees that Scope of Work may be required for Support Services outside of Client’s chosen support level, if any, and that such support may require Client to pay additional professional fees. Client will supply a primary and a backup support contact, who must be a full-time employee of Client, knowledgeable and trained to make support calls, receive responses, and coordinate and facilitate the support services.

During the Term, Company 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 Company. Client understands and agrees that no security solution is 100% faultless or perfect in all situations, that failure to implement Company 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. Company 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 Company.

Quotations and recommendations for IT Services are generally provided only during Company business hours, and Client is advised to plan ahead where consultation with Company regarding infrastructure is needed. Unless otherwise designated in the SOW, Services will normally only be provided during Company Business Hours as listed on the Company’s website . Company Business Hours are currently 8:00 am to 5:00 pm EST/EDT Monday to Friday, except for major bank holidays. Company business hours and holidays may be amended from time to time by notice to Client.

Cooperation. Client shall cooperate with Company with regard to the performance of Company’s obligations hereunder, including (without limitation):

Providing to Company such information, data, access to premises, remote access to Client’s System, management decisions, approvals, and acceptances as may be commercially reasonable to permit Company to provide the Services including administrative passwords.
Maintaining such internet and telecommunications connections as are necessary and appropriate for Company to provide the Services. Company will provide guidance concerning internet and telecommunications requirements for certain Services offered by Company. Client understands that Company is not responsible for issues caused by Client’s internet/telecommunications services or lack thereof.
Notifying Company as soon as practicable regarding IT issues (including installation or deinstallation of equipment, hardware, or software) that require Company resolution. Client understands that failure to notify Company promptly regarding IT issues and/or Client personnel attempting to install or deinstall items or fix an issue without Client guidance (i.e. self-help) could worsen an IT problem and make it more difficult and time consuming to fix, deinstall, or install hardware, software, or equipment. Company reserves the right to exclude or limit support and services to devices/equipment, upon written notice to Client, where Client or its Users have repeatedly and/or knowingly disregarded Company instructions tailored to prevent IT issues (e.g. repeated virus infections of an employee computer due to accessing suspicious websites after Company identifying the source of such virus; a Client User; repeated failure to timely notify Company of an IT issue, or similar).
Consulting with Company prior to making upgrades or changes to its IT devices, equipment, and/or infrastructure and to consider Company’s recommendations concerning such changes. Company reserves the right not to support such new or changed devices, equipment, and/or other infrastructure, should Client fail to consult fully with Company prior to implementation of such changes.
Maintaining all equipment, devices, and other infrastructure under warranty and with full manufacturer support. Company does not support devices, equipment, and other infrastructure where such item is not supported by the manufacturer.
Authorizing Company and its employees, contractors, agents, and representatives to access all devices, peripherals, computers, hardware, and software (whether, owned, leased, or otherwise controlled by Client) that are connected to System for the purpose of providing the Services to devices covered by any SOW. Client understands that devices not connected to the internet or otherwise accessible to Company may not receive updates, patches, and other Services until such devices are made available to Company.

5. Internet and Equipment

The Services require a reasonable internet connection and Client is solely responsible for procuring and maintaining telecommunications and internet services from a third-party provider. Client understands and agrees that Company is not responsible for any interruptions in service, downtime, speed issues, or other problems involving Company’s internet connection.

Company may provide Equipment, in support of the provision of Services, and Company grants Client a non-exclusive, non-transferable, limited license to use the Equipment in accordance with this Agreement. Client understands and agrees that Company provided, or owned equipment must be serviced only by Company personnel or a third-party specifically selected and authorized by Company. In the event that Company determines that a third-party has serviced or otherwise modified the equipment without Company’s authorization, Company may, in its discretion (1) charge Company’s normal hourly rates for any Company Services needed to fix issues related to the equipment; (2) remove the equipment device from the scope of Client’s Managed IT agreement coverage, if applicable, as well as any warranties provided by the Company on such equipment, if applicable; and/or (3) require that Client pay the full replacement costs for such equipment. If Client is supplied with Company-owned Equipment, Client agrees to acquire and maintain, at its sole cost, insurance for the full replacement value of that Equipment. Company must be listed as an additional insured on any policy acquired and maintained by Client under this Agreement, and the policy will not be canceled or modified during the term of the applicable SOW without prior notification to Company. Upon Company’s reasonable request, Client agrees to provide proof of insurance, including proof of payment of any applicable premiums or other amounts due under the insurance policy.

For Company-owned equipment, Client agrees to give Company access during regular business hours, or at any time in the event of an emergency, to service or remove the Equipment at Company’s sole discretion. Loss, theft or physical damage to the Equipment is Client’s responsibility. Upon termination of this Agreement by either party, Client agrees to return Equipment in good condition, reasonable wear and tear excepted, to Company within thirty (30) days of the disconnect date, unless an earlier date is specified by Company in the notice of Termination. If the Equipment is not returned within the specified time period, Client will be charged an “Equipment Non-Return fee”, calculated as the depreciated value of all hardware related to this Agreement multiplied by the remaining tenure of this Agreement.

Unless otherwise stated in a SOW, all hardware, software, peripherals or accessories purchased through Company (“Third-Party Products”) is nonrefundable once the applicable purchase order is placed in Company’s queue for delivery. Company will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third-Party Products to Client, but will have no liability whatsoever for the quality, functionality or operability of any Third-Party Products, and we will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Third-Party Products.

Upon termination of this Agreement or applicable SOW for any reason, Client will provide Company with access, during normal business hours, to Client’s premises or any other locations at which Company-owned equipment or software is located to enable Company to remove all Company equipment, hardware, software, and similar items from the premises. If Client fails or refuses to grant Company access as described herein, or if any of the Company equipment, software, hardware, or other items are missing, broken or damaged (normal wear and tear excepted), Company may invoice Client, and Client shall immediately pay, the full replacement value of any and all missing or damaged items.

6. Restrictions on Use

Client and its Users agree that they will not:

Use the Service in a manner that violates any applicable local, state, federal or international law, order or regulation.
Take part in any fraudulent activities, including impersonating any person or entity or forging anyone else’s digital or manual signature.
Invade another person’s privacy, stalk, harass, or otherwise violate the rights of others.
Post, transmit, or distribute content that is illegal, threatening, abusive, libelous, slanderous, defamatory, promotes violence, or is otherwise offensive or objectionable in Company’s sole discretion.
Restrict, inhibit, or otherwise interfere with the ability of any other person to use or enjoy the Services, including, without limitation, by posting or transmitting any information or software which contains a virus, lock, key, bomb, worm, Trojan botnet, cancelbot, or other harmful feature.

7. No Hire or Interference

The Client agrees that at all times while Client is employing the services of and for twelve (12) months after the contract period terminates, the Client will not solicit, hire, retain (including as a consultant) any Company employee or independent contractor or any former employee or independent contractor who has left employment or contract within twelve (12) months prior to such hiring. This Section does not prevent Client from hiring or soliciting any employee, independent contractor, or former employee or independent contractor of the Company who responds to a general solicitation that is a public solicitation of prospective employees and/or independent contractors and is not directed specifically to the employees or independent contractors of Company.

8. Use of Client’s Name for Marketing Purposes

Client agrees that Company may use Client’s company name in conjunction with a client list that may appear in Company’s printed marketing material, electronic documents and/or similar presentations on the Internet, provided that any such client list is utilized by Company solely for general marketing purposes in the ordinary course of Company’s business, and also includes the names of representative clients of Company in addition to Client. Client will also add a SEO link to its website indicating that Company provides its IT services, if requested by Company.

9. Confidentiality

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. Company 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.

10. Third-Party Products and Title

To the extent that Client has ordered services or products provided by a Third-Party as part of the Services (e.g. firewall), Client acknowledges such Third-Party Services or Products may require Client to accept an End User License Agreement (EULA) or other third-party services agreement and that such agreement is a binding agreement between such third-party provider and Client. Company retains all right, title, copyright, patent, trademark, trade secret and all other proprietary interests to all Services and any derivatives thereof. No title, copyright, patent, trademark, trade secret or other right of intellectual property not expressly granted under the Agreement is exchanged between the Parties.

11. Minimum System Requirements, Updates, and Patches

At all times, all software on the System must be genuine and licensed, and Client agrees to provide us with proof of such licensing upon our request. If we require Client to implement certain minimum hardware or software requirements in a SOW (“Minimum Requirements”), Client agrees to do so as an ongoing requirement of us providing our Services to Client.

If patches and other software-related maintenance updates (“Updates”) are provided under a SOW, we will install the Updates only if we have determined, in our reasonable discretion, that the Updates will be compatible with the configuration of the System and materially beneficial to the features or functionality of the affected software or hardware. We will not be responsible for any downtime or losses arising from or related to the installation or use of any Update, provided that the Update was installed in accordance with the manufacturer’s or applicable vendor’s instructions.

12. Insurance

Company and Client will mutually maintain, at its own expense, reasonable insurance necessary to cover the Party, its assets/property, and employees and contractors. This insurance shall include, at a minimum, the following: (1) general commercial liability insurance with a limit of no less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate; (2) cyber insurance covering both the insured and third-party claims, with a limit of no less than $1,000,000.00 per occurrence; and (3) workers’ compensation and unemployment insurance coverages as required by any state and federal laws to which each Party is subject. All of the insurance policies described herein will not be canceled, materially changed or renewal refused until at least thirty (30) calendar days written notice has been given to the other party.

13. Jurisdiction and Venue

This Agreement shall be governed by the laws of the State of New Hampshire without reference to its conflicts of law.

The Parties agree that any dispute or controversy arising out of, relating to, or concerning any interpretation, construction, performance or breach of this agreement, shall be settled by arbitration to be held in Rockingham County, New Hampshire in accordance with the dispute resolution rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. The non-prevailing party shall be responsible for the prevailing party’s attorneys’ fees, costs and expenses, as determined by the arbitrator(s).

Notwithstanding the forgoing, the federal and state courts located in Rockingham County, New Hampshire shall retain limited jurisdiction over the following: (1) claims brought in small claims/conciliation court by either party, provided that such claims and counterclaims meet the jurisdictional limits of such courts; and (2) for preliminary injunctive relief to maintain the status quo between the parties during the duration of an arbitration, with such jurisdiction specifically limited to such injunction after which all other claims and disputes must be resolved in arbitration.

14. Limited Liability and Warranty

Company agrees to provide the Services in a professional manner, in line with reasonable industry standards.

The Services, including all hardware, software, and Third-Party Products are provided “as is” and “as available” without warranty or condition of any kind, including but not limited to the implied warranties or conditions of merchantable quality and fitness for a particular purpose. Company does not warrant that the Services will meet any particular need or that the operation will be error free.

In no event shall Company be liable to Client or any third-party for any indirect, incidental, special, consequential, exemplary or punitive damages, even if advised of the possibility thereof, including any damages whatsoever resulting from loss of use, data or profits, whether in an action based on contract or tort arising out of or in connection with the use or performance of Services. Client hereby waives any claims and releases Company from any claims arising out of Client’s use of the Services or Company’s provision of the Services to Client, including collection of any data.

Although Company has taken commercially reasonable steps to provide a secure system within limitations existing in network and computer infrastructure, Company does not warrant or guarantee that communication over the Services will be secure from monitoring or tampering, nor that information stored on any computer connected to the Services will be secure from monitoring or tampering. Because of this, any sensitive or confidential information (such as credit card numbers or other financial information, medical information or trade secrets) sent by Client or Client’s users is at Client’s sole risk and Company shall have no liability whatsoever for any claims, losses, action, damages, suits or proceedings arising out of or otherwise relating to such actions by Client or its Users. Client agrees that the total aggregate liability limit of Company shall in no event exceed the total dollar amount which Client paid during the previous six (6) month period for the Service that gave rise to the claim.

Under no circumstances will Company be responsible for any data lost, corrupted or rendered unreadable due to (i) communication and/or transmissions errors or related failures, (ii) equipment failures, including, but not limited to, silent hardware corruption-related issues, or (iii) Company’s failure to backup or secure data from portions of the System that were not expressly designated in the applicable SOW as requiring backup or recovery services, or for which backup or recovery services were not purchased. Unless expressly stated in a SOW, Company does not warrant or guarantee that any maintained storage device or functionality, data backup device or functionality, or load balancing functionality will operate in a completely error-free manner.

15. Indemnity

Client agrees to indemnify, defend and hold harmless Company and its affiliates, officers, directors, subcontractors, employees, and agents from any claims, losses, or expenses of any kind (including, but not limited to attorneys’ fees) arising from Client’s use, Client’s User’s use, or a third parties’ use or attempted use of the Services, including, but not limited to, Client’s use, Client’s User’s use, or a third parties’ use of the Services in any manner prohibited under this Agreement. Client’s obligation to indemnify, defend and hold harmless Company survives termination of this Agreement. Client shall also indemnify Company against any claim that any data, materials, items or information supplied to Company under the Agreement infringes any US patent, copyright, trademark or licensing within the jurisdictions where Company is provided with such information.

Company agrees to indemnify, defend, and hold harmless Client and its officers, directors, employees, Affiliates and representatives from any losses, arising from or in connection with (a) the damage, loss (including theft) or destruction of any real property or tangible personal property of the Client or (b) personal injury resulting from the actions or inactions of any employee or representative of the Company insofar as such damage arises out of or is in the course of fulfilling Company’s obligations under this Agreement and to the extent such damage is due to any negligence, breach of statutory duty, omission or default of the Company. Company shall also indemnify Client against any claim that any data, materials, items or information supplied to Client under the Agreement infringes any US patent, copyright, trademark or licensing within the jurisdictions where Company or Client is provided with such information.

The above indemnities are contingent upon: (i) the indemnified Party providing prompt notice of any claim of infringement and assistance in the defense thereof, (ii) the indemnifying Party’s sole right to control the defense or settlement of any such claim, provided that the settlement does not require a payment or admission of liability on the part of the other Party, and (iii) the indemnified Party not taking any actions or failing to take actions that hinder the defense or settlement process as reasonably directed by the indemnifying Party.

16. Early Termination

In the event that Client terminates this Agreement, or any Scope of Work created hereunder for Convenience, before the end of the applicable Initial Term or Renewal Term, as the case may be, the Client shall pay an Early Termination Charge (“Early Termination Charge”) as liquidated damages and a reasonable approximation of Company’s loss from early termination.

The amount of the Early Termination Charge will be calculated as follows: (a) all credits or discounts provided to Client for a longer length of service (if applicable); plus (b) the fair market value of any services/products provided for free or at a significantly reduced rate, including any waived or reduced on-boarding fees plus (c) (i) if the Term for the relevant Service is twelve months or fewer, one (1) month of fees under the Agreement; OR (ii) if the Term for the relevant Service is greater than twelve (12) months (including a three (3) year term agreement) the lesser of (a) (i) 100% of the fees for the remaining months in the Agreement; or (ii) twelve (12) months of fees under the Agreement. In addition to the Early Termination Fee, Client is responsible for paying any fees still outstanding for the Agreement to the Date of Termination.

17. Miscellaneous

All notices hereunder shall be delivered to the other Party identified in the Agreement either personally, via certified mail, email, or overnight courier. If delivered personally, notice shall be deemed effective when delivered; and if delivered via certified mail or overnight courier, notice shall be deemed effective three days after mailing. If delivered via email, such notice is deemed effective on the time and date a return email confirming receipt is sent by Company or Client (as applicable), and both parties agree to send return receipts within two (2) business days of receipt of an applicable email. Electronic signatures have the same legal effect as a physical signature to the maximum amount allowable under applicable state law.

Client acknowledges that the Services are subject to control under U.S. law, including the Export Administration Regulations (15 CFR 730-774) and agrees to comply with all applicable import and export laws and regulations.

Should any clause, term or condition of this Agreement be or become illegal or impossible to perform because of a law or ruling of any controlling governmental agency in the Territory, such clause, term or condition shall be viewed as separate from the remainder of this Agreement, which shall be valid and binding. Should the terms of this Agreement contradict the terms provided in the Scope of Work, the terms provided here shall govern unless expressly stated otherwise. The failure of either Party to enforce any of the provisions of this Agreement or the waiver thereof in any instance shall not be construed as a general waiver or relinquishment on its part of any such provisions, but the same shall, nevertheless, be and remain in full force and effect. Sections regarding Indemnity, Confidentiality, Title, Limitation of Liability, Termination, and Import Export shall survive termination of this Agreement.

Neither Company nor Client shall be liable for any loss, damage or failure due to causes beyond its control, including strikes, riots, terrorism, earthquakes, epidemics, wars, theft, fires, floods, weather, power failure, telecommunications and/or internet interruptions, the failure or closure of a financial institution, computer malfunctions, acts of God, strikes, lockouts, court order, internet or communication problems, power failures, or unauthorized access or theft, or any other failure, interruption or error.

This Agreement, including any Scope of Works, constitutes the entire agreement between the parties relating to its subject matter and can only be modified by a writing signed by authorized officers of Company and Client. Client shall not assign, transfer, or delegate (including via merger, acquisition, reorganization, or transfer of 51% or more of the ownership interests or assets of the Company) any interest, obligation, or right under this Agreement without the prior written consent of Company. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their successors or assigns.