Eagle Tech Corp
Master Services Agreement
This Master Services Agreement (this “Agreement” or “MSA”) is effective upon the date of the last signature hereto (the “Effective Date”), by and between EAGLE TECH CORP, (“EAGLE TECH CORP”), and the party identified in the signature line (“Client”), (collectively “Parties”), (individually “Party”).
Recitals
A. EAGLE TECH CORP is a provider of Business Technology Solution, AI Solutions, Managed IT Services, Cloud Services, Cyber Security & Compliance Services, IT Consulting, Hardware and Software Consulting, Building Tech Solutions, and CTO, CSO, CCO Services (“Services”) and Hardware and Software Procurement (“Product”); and
B. Client may consider Products or Services from EAGLE TECH CORP pursuant to an addendum(s) to this Agreement (each, an “Addendum”).
C. This MSA supersedes all previous MSAs entered into between the Parties; all existing and in-effect SOW’s and Quotes shall be deemed incorporated by reference and governed by this MSA as of the Effective Date first written above.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Definitions. For the purposes of this Agreement, the following terms have the meaning set forth below:
• “Addendum” has the meaning set forth in the Recitals.
• “Affiliate” is a Person who is directly or indirectly under common control (the power to direct or cause the direction, including through the ownership, voting proxies, by contract or otherwise) a Party.
• “Confidential Information” means any information that is not publicly known and is treated as confidential by a Party (i.e., personally identifiable information, trade secrets, information about business operations and strategies, Clients, contract terms, vendors, pricing, and marketing).
• “Client Equipment” means any equipment, cabling or facilities provided by Client and used in the provision of Services.
• “Client Materials” means any documents, data, methodologies, and other materials provided to EAGLE TECH CORP by Client.
• “Deliverables” means work product delivered to Client pursuant to an Addendum or prepared by or on behalf of EAGLE TECH CORP in the course of performing Services pursuant to an Addendum.
• “Disclosing Party” means a party that discloses Confidential Information under this Agreement.
• “Initial Assessment” means the process of accessing, understanding, and evaluating Client’s current System, network, and peripherals as a critical first step before initiating a managed services engagement and involves gathering essential information to create a tailored service plan.
• “Intellectual Property Right(s)” means all: (a) patents, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs) and rights in data and databases; (d) trade secrets, know-how and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
• “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any federal, state, local or foreign government or political subdivision thereof, or tribunal of competent jurisdiction that applies to a Party.
• “Losses” mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
• “Material Breach” means a breach of this agreement, pursuant to Section 4(c), and such breach substantially and fundamentally affects the contract’s value or purpose and/or goes against the core principles agreed upon between the Parties.
• “MSA” means Master Services Agreement.
• “Network Administrative Credentials” means the usernames, passwords, and other authentication methods that grants elevated and/or full access to the Client’s computer network and systems, configurations, and security settings. EAGLE TECH CORP must have exclusive network administrative credentials for Client’s network. While EAGLE TECH CORP is providing services, EAGLE TECH CORP will not release the network administrative credentials to Client or any third party for any reason without a signed release for the same. Upon mutual assent to the termination terms, conditions, and the shut off of services date, EAGLE TECH CORP will then release the Network Administrative Credentials to Client in the form of a Run Book.
• “Permitted Subcontractor” has the meaning set forth in Section 2.1(b).
• “Person” means an individual, corporation, limited liability company, partnership, joint venture, governmental authority, unincorporated organization, trust, association, or other entity.
• “Project” means a project as described in an Addendum.
• “Receiving Party” means a party that receives or acquires Confidential Information directly or indirectly under this Agreement.
• “Run Book” means technical documentation for Client’s systems and applications, troubleshooting guides for known issues, escalation paths when issues cannot be resolved using standard procedures, and administrative passwords for the Client’s systems and IT environment. The Run Book is EAGLE TECH CORP’s intellectual property, and is only provided to Client as set forth in this Agreement.
• “Services” has the meaning set forth in the recitals and includes any services provided by EAGLE TECH CORP pursuant to an Addendum hereto, which shall be made a part of, and incorporated into, this Agreement.
• “System” means the Client’s assemblage of devices, hardware, software, peripherals, data, processes, networks, servers, IT infrastructure, and related components.
• “Term” as it relates to this MSA and Addendum term(s) has the meaning set forth in Section 4.
• “EAGLE TECH CORP Equipment” means any equipment or hardware provided by EAGLE TECH CORP and used in the provision of the Services for which ownership has not transferred to Client.
• “EAGLE TECH CORP Resources” means all employees and Permitted Subcontractors of EAGLE TECH CORP.
2. EAGLE TECH CORP’s Obligations.
2.1 Upon execution of an Addendum to this Agreement, EAGLE TECH CORP shall:
(a) Appoint one EAGLE TECH CORP Personnel as the primary contact with authority to act on behalf of EAGLE TECH CORP in connection with matters pertaining to this Agreement (the “EAGLE TECH CORP COO and/or CEO”);
(b) Require any Person engaged as a subcontractor of EAGLE TECH CORP to provide Services pursuant to an Addendum (“Permitted Subcontractor”) to be bound by requirements that are no less restrictive than those of EAGLE TECH CORP in this Agreement, and, upon Client’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Client.
3. Client’s Obligations.
3.1 Client shall:
(a) cooperate with EAGLE TECH CORP to facilitate the Services and appoint a Client employee (“Client Liaison”) to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of Client with respect to matters pertaining to this Agreement. The Client Liaison must be: (i) knowledgeable with respect to Client’s System; and (ii) must be an authorized decision maker within Client’s organization;
(b) obtain and maintain all necessary licenses and consents and comply with all applicable Laws in relation to the Services, including all applicable local, state, federal, and international laws in all cases before the date on which the Services are scheduled to commence;
(c) grant EAGLE TECH CORP the right to send Client’s employees EAGLE TECH CORP’s Newsletters, “Tech Tips” and other email communications;
(d) permit EAGLE TECH CORP to access the System through a reputable third-party software provider allowing remote monitoring and access. Such access includes EAGLE TECH CORP’s ability to assess Client’s System for the Initial Assessment. Due to such remote access, EAGLE TECH CORP cannot guaranty security of Client data; however, EAGLE TECH CORP shall use industry best practices and thoroughly vetted and reputable third party tools for such remote access to the System.
(e) provide such access to Client’s premises, and such office accommodation and other facilities as may reasonably be requested by EAGLE TECH CORP and agreed to by the Client in writing in advance, for the purposes of performing the Services on-site, as necessary;
(f) respond promptly to any EAGLE TECH CORP request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for EAGLE TECH CORP to perform Services in accordance with the requirements of this Agreement or any Addendum;
(g) provide such Client Materials as EAGLE TECH CORP may request, in order to perform the Services, in a timely manner, and ensure that it is complete and accurate in all material respects;
(h) ensure that all Client Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant legal or industry standards or requirements. Client Equipment that is end-of-life, meaning that it is no longer supported by the vendor or manufacturer, is only capable of being supported on a best efforts basis due to integration and incompatibility issues that arise when Client Equipment is end-of-life.
(i) Client should, at Client’s expense, procure and maintain cyber insurance covering Client’s system with a financially sound and reputable insurer. Upon request, Client will provide EAGLE TECH CORP with a certificate of insurance from Client’s insurer evidencing the insurance coverage; and
(j) ensure that Client Equipment, Systems and any relevant devices are required to maintain an active and applicable warranty throughout the duration of this Agreement. In the event that any warranty, as required by this Agreement, is inactive, inapplicable, or invalid or if technological advancements or industry standards necessitate a warranty upgrade during the term of this Agreement, EAGLE TECH CORP may automatically renew or upgrade any such applicable warranty to meet the requirements herein. Client shall be responsible for the costs and fees associated therewith, which will be due upon receipt of an invoice associated with such warranty.
4. Term, Termination and Survival.
4.1 This Agreement shall commence as of the Effective Date and shall continue thereafter for as long as any Addendum to this Agreement is continuing plus one (1) year after the completion of Services under all Addendums, unless sooner terminated pursuant to Section 4.2 or Section 4.3 below. EAGLE TECH CORP is not providing any services under this Agreement (services are specified and provided under Addendums), Client acknowledges and agrees that Client will remain bound by this Agreement for provisions including but not limited to, items regarding confidentiality, payment of fees, and limitation of liability.
4.2 Either Party may terminate this Agreement, effective upon sixty (60) days written notice to the other Party (the “Defaulting Party”) if the Defaulting Party:
(a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a Material Breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach;
(b) becomes insolvent or admits its inability to pay its debts generally as they become due;
(c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days of filing or is not dismissed or vacated within forty-five (45) days after filing;
(d) is dissolved or liquidated or takes any corporate action for such purpose;
(e) makes a general assignment for the benefit of creditors; or
(f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
4.3 Notwithstanding anything to the contrary in Section 4.2, if the termination is by Client and not for Cause or is by EAGLE TECH CORP and resulting from a Material Breach by Client, Client shall pay:
(a) a termination fee equal to the cost of six (6) months’ worth of the average fees paid by Client per month over the prior twelve (12) months, or the actual remaining months of fees if less than six (6) months remain on the term. (“Early Termination Fee”).
(b) any unpaid undisputed monthly fees due through the termination date of the Addendum; and
(c) all amounts for Products, vendor service and equipment commitments made by EAGLE TECH CORP’s in order to provide Services to Client for: (1) the remainder of the Term; or (2) the termination fees required of EAGLE TECH CORP to terminate such commitments, whichever is less. Some vendors, i.e. Microsoft, do not allow early termination of license fees and Client understands and consents to payment of the licenses for the remainder of the license term.
4.4 In addition to the provisions included in this Section 4.4, EAGLE TECH CORP may terminate this Agreement before the expiration date of the Term on written notice if Client fails to pay any undisputed amount when due hereunder. Payment is due within thirty (30) days from receipt by Client of any invoice. Client is granted a five (5) day grace period before a late fee applies, and if payment is not received within thirty-five (35) days receipt of any invoice, a late fee shall apply. Furthermore, if Client’s nonpayment continues for forty-five (45) days from receipt of an invoice, EAGLE TECH CORP will provide Client with written notice that Client is behind on satisfying its payment obligations for Services rendered. If Client’s nonpayment persists for sixty (60) days, EAGLE TECH CORP may shut down Client’s access to EAGLE TECH CORP support services. If Client’s nonpayment persists for ninety (90) days, EAGLE TECH CORP may shut down support along with all other Services Client receives from EAGLE TECH CORP. If Client cures its nonpayment between sixty (60) and eighty-nine (89) days from the date of the applicable invoice, a reactivation fee of 10% of the unpaid invoice(s) shall apply. If Client cures its nonpayment ninety (90) days or thereafter, a reactivation fee of 25% of the unpaid invoice(s) shall apply. EAGLE TECH CORP SHALL HAVE NO LIABILITY FOR ANY SUSPENSION OF SERVICES BASED ON CLIENT’S FINANCIAL BREACH. Time is of the essence in the performance of all payment obligations by Client.
4.5 The rights and obligations of the Parties set forth in Section 4.6 and in Sections 7, 8, 9, 10, 11, 12, and 13, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
4.6 Upon expiration or termination of an Addendum to this Agreement:
(a) EAGLE TECH CORP shall: (i) promptly deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid and all Client Equipment and all Client Materials; (ii) promptly remove any EAGLE TECH CORP Equipment located at Client’s premises that has not been sold to Client; (iii) provide reasonable cooperation and assistance to Client upon Client’s written request and at Client’s expense in transitioning the Services to an alternate service provider; and (iv) on a pro rata basis, repay all fees and expenses paid in advance for any Services or Deliverables which have not been provided.
(b) Client shall pay and reimburse EAGLE TECH CORP for its costs in providing the transition services set forth in Section 4.6(a), in advance based upon EAGLE TECH CORP’s estimate of costs for transitions services at its then-current billable rates; and EAGLE TECH CORP shall reconcile actual charges for transition efforts and services to Client’s new service provider with the prepaid amount described above within thirty (30) days of completion of transition assistance. Upon mutual assent to the termination terms, conditions, and the shut off of services date, EAGLE TECH CORP will then release the Network Administrative Credentials to Client in the form of a Run Book upon Client’s execution of a release and waiver of liability related to the Network Administrative Credentials. For avoidance of doubt, the Network Administrative Credentials and Run Book are accompanied by a release and waiver of liability as EAGLE TECH CORP will no longer have control or access to the Client’s IT environment or systems upon releasing the Run Book.
(c) Each Party shall: (i) return to the other Party all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information; (ii) within thirty (30) days after the termination of services permanently erase all of the other Party’s Confidential Information from its computer systems and; (iii) certify in writing to the other Party that it has complied with the requirements of this clause; provided, however, that Client may retain copies of any Confidential Information of EAGLE TECH CORP incorporated into the Deliverables or to the extent necessary to allow it to make full use of the Services and any Deliverables. Notwithstanding anything herein to the contrary, EAGLE TECH CORP may permanently delete all of Client’s information in its possession thirty (30) days following the date of expiration or termination of this Agreement.
i. EAGLE TECH CORP shall be held harmless for and indemnified by Client against any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, EAGLE TECH CORP’s deletion of Client data beyond the time frames described in this Section.
ii. EAGLE TECH CORP shall be held harmless for and indemnified by Client against any and all claims, costs, fees, or expenses that arise from, or are related to, EAGLE TECH CORP’s release of the Network Administrative Credentials and Run Book.
(d) EAGLE TECH CORP shall have no obligation to store or maintain any Client data in EAGLE TECH CORP’s possession or control for more than fifteen (15) days following the expiration or termination of an applicable Addendum, unless otherwise required by law.
5. Fees and Expenses; Payment Terms. Client will pay to EAGLE TECH CORP the fees set forth in each Addendum for the Services or Products provided under that Addendum. Any Services beyond the scope detailed within any Addendum, or within the scope of an Addendum but for which Services are required to be performed outside of regular business hours of 8:00 a.m. to 5:00 p.m. local time, Monday-Friday (“Business Hours”), or on New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Friday following Thanksgiving Day, Christmas Eve, Christmas Day or New Year’s Eve (“Holiday”), or due to unauthorized modifications to System by Client (“Out-of-Scope Work”), shall be billed to Client and Client shall pay for such Out-of-Scope Work according to EAGLE TECH CORP’s then-current rate schedule, which can be found at https://eagletechcorp.info/ratecard, which may be modified by EAGLE TECH CORP with sixty (60) days notice to Client. Out-of-Scope Work shall not be provided to Client without written confirmation by either party within thirty (30) days of such request. All EAGLE TECH CORP representations relating to time for Out-of-Scope Work are estimates of actual time and not a guarantee or agreement to perform for a fixed fee as time and cost involved may vary based upon the complexity of the issues. However, if time and cost vary from the estimate provided, EAGLE TECH CORP must obtain pre-approval from Client in writing. Client may halt Out-of-Scope Work at any time with written notice and payment of balance of work performed. Different hourly rates may apply based upon work outside of Business Hours, overtime, weekends or Holiday time, different levels of personnel experience, and/or sophistication of work. Unless otherwise provided in an Addendum, said fee will be payable within thirty (30) days of EAGLE TECH CORP’s invoice to Client. EAGLE TECH CORP shall add any sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, EAGLE TECH CORP’s income, revenues, gross receipts, personnel or real or personal property or other assets.
6. Intellectual Property Rights; Ownership.
6.1 EAGLE TECH CORP hereby irrevocably assigns a nonexclusive right throughout the world in and to the Deliverables.
6.2 EAGLE TECH CORP and its licensors are, and shall remain, the sole and exclusive owners of all right, title and interest in and to its Intellectual Property.
6.3 Except as explicitly set forth in this Section 6, no other license or transfer of any Intellectual Property right is conveyed or implied by this Agreement.
7. Confidential Information.
7.1 Defined. Confidential Information shall mean any and all non-public information provided to EAGLE TECH CORP by Client, including but not limited to Client’s customer data, personally identifiable information, employee information, customer lists, internal Client documents, and related information. Confidential Information shall not include information that: (i) has become part of the public domain through no act or omission of EAGLE TECH CORP; (ii) was developed independently by EAGLE TECH CORP; (iii) is or was lawfully and independently provided to EAGLE TECH CORP prior to disclosure by Client, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
7.2 Use. EAGLE TECH CORP shall keep Client’s Confidential Information confidential and shall not use or disclose such information to any third party for any purpose except as needed to perform the Services in accordance with this Agreement and it’s addendums. If EAGLE TECH CORP is required to disclose the Confidential Information to any third party, then EAGLE TECH CORP shall, by written agreement, keep the information confidential under terms that are at least as restrictive as those stated in this Section.
7.3 Due Care. EAGLE TECH CORP shall exercise the same degree of care with respect to the Confidential Information it receives from Client as EAGLE TECH CORP normally takes to safeguard its own confidential and proprietary information, which in all cases shall be at least a commercially reasonable level of care.
7.4 Compelled Disclosure. If EAGLE TECH CORP is legally required by subpoena or similar process to disclose Confidential Information, EAGLE TECH CORP shall notify Client in writing so that Client may seek a judicial remedy. EAGLE TECH CORP will cooperate, at Client’s expense, with Client efforts to obtain judicial relief. Failing Client securing judicial relief, EAGLE TECH CORP may disclose, without liability hereunder, that portion of the Confidential Information that it is legally required to disclose.
7.5 EAGLE TECH CORP Information. Client shall not disclose information provided to Client by EAGLE TECH CORP relating to proposals, reports or other compliance information, pricing or deliverables of EAGLE TECH CORP to Client.
8. Limited Warranty.
8.1 EAGLE TECH CORP warrants that its technicians are qualified to provide the Services and that Services and Deliverables will be in conformity in all material respects with all requirements or specifications stated in this Agreement and any applicable Addendum. In the event of EAGLE TECH CORP’s breach of the foregoing warranty, EAGLE TECH CORP’s sole and exclusive obligation and liability and Client’s sole and exclusive remedy shall be as follows:
(a) EAGLE TECH CORP shall use reasonable efforts to cure such breach; provided, that if EAGLE TECH CORP cannot cure such breach within a reasonable time (but no more than thirty (30) days) after Client’s written notice of such breach; Client may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 13.1.
(b) In the event the Agreement is terminated in accordance with this Section 8.1, EAGLE TECH CORP shall within thirty (30) days after the effective date of termination, refund to Client any fees paid by the Client as of the date of termination for such Service or Deliverable less a deduction equal to the fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis.
(c) The foregoing remedy shall not be available unless Client provides written notice of such breach within thirty (30) days after delivery of such Service or Deliverable to Client or with respect to changes made by any Person other than EAGLE TECH CORP or at EAGLE TECH CORP’s direction.
8.2 EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 8.1 ABOVE; (A) EAGLE TECH CORP HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND; (B) EAGLE TECH CORP SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CLIENT SHALL RELY UPON THE WARRANTY OF THE THIRD-PARTY MANUFACTURER OF PRODUCTS ONLY. CLIENT MAY PURSUE WARRANTY CLAIMS AGAINST THE MANUFACTURER ONLY, AS PRODUCTS ARE PROVIDED BY EAGLE TECH CORP “AS IS”, WITH ALL FAULTS AND SUBJECT TO ANY LICENSE AGREEMENT.
9. Indemnification.
9.1 Each party (an Indemnifying Party”) hereby agrees to indemnify, defend and hold the other party (an “Indemnified Party”) harmless from and against any and all loss, damage, cost, expense or liability, including reasonable attorney’s fees, (collectively “Damages”) that arise from, or are related to the negligent acts, negligent omissions or intentional wrongful misconduct of the Indemnifying Party and/or the Indemnifying Party’s incurred, Material Breach of this MSA. Wrongful misconduct shall include infringement of copyrights, patent rights and/or unauthorized or unlicensed use of any material, property, or other work.
9.2 An Indemnitee seeking indemnification hereunder shall promptly notify the Indemnifying Party in writing of any Action and cooperate with the Indemnifying Party at the Indemnifying Party’s sole cost and expense. The indemnifying Party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnifying Party’s sole cost and expense. The indemnifying Party shall not settle any Action in a manner that adversely affects the rights of the Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. The Indemnitee’s failure to perform any obligations under this Section 9.2 shall not relieve the Indemnifying Party of its obligations under this Section 9.2 except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense.
10. LIMITATION OF LIABILITY.
10.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD-PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10.2 IN NO EVENT SHALL EAGLE TECH CORP’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO EAGLE TECH CORP PURSUANT TO THE APPLICABLE ADDENDUM IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.3 IN THE EVENT EAGLE TECH CORP’S INSURANCE CARRIER ACCEPTS THE DEFENSE AND INDEMNIFICATION OF A CLAIM SUBMITTED BY CLIENT, THE PRECEDING PROVISIONS OF SECTION 10 SHALL NOT APPLY AND THE LIMITS OF LIABILITY SHALL BE THE ACCEPTED LIMIT OF THE INSURER. EAGLE TECH CORP IS NOT REQUIRED TO CONTEST ITS INSURANCE CARRIER’S DETERMINATION AS TO WHETHER A PARTICULAR CLAIM IS COVERED.
10.4 IN THE EVENT THAT EAGLE TECH CORP CAUSES ANY DAMAGE TO CLIENT’S PERSONAL PROPERTY, EAGLE TECH CORP SHALL REPLACE THE DAMAGED PERSONAL PROPERTY.
10.5 EAGLE TECH CORP SHALL NOT BE LIABLE FOR DELAY IN PERFORMANCE OR NONPERFORMANCE OF ANY TERM OR CONDITION OF THIS MSA DIRECTLY OR INDIRECTLY RESULTING FROM LACK OF FULL AND FREE ACCESS TO SYSTEM OR PREMISES. THIS LIMITATION OF LIABILITY REPRESENTS A BARGAINED FOR EXCHANGE AND IS A MATERIAL COMPONENT TO THE CALCULATION OF FEES BY EAGLE TECH CORP. NOTWITHSTANDING THE FOREGOING, EAGLE TECH CORP SHALL NOT BE LIABLE FOR ANY DAMAGES WHICH WERE CAUSED OR WOULD HAVE BEEN PREVENTED BY PRODUCTS OR SOFTWARE OFFERED TO CLIENT BY EAGLE TECH CORP FOR WHICH CLIENT DECLINED OR DELAYED IMPLEMENTATION, OR FOR THE INTENTIONAL CRIMINAL ACTS OF THIRD PARTIES.
10.6 IF EAGLE TECH CORP’S PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT IS PREVENTED OR DELAYED BY ANY ACT OR OMISSION OF CLIENT OR CLIENT’S AFFILIATES, AGENTS, SUBCONTRACTORS, CONSULTANTS OR EMPLOYEES, EAGLE TECH CORP SHALL NOT BE DEEMED IN BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE LIABLE FOR ANY COSTS, CHARGES OR LOSSES SUSTAINED OR INCURRED BY CLIENT, IN EACH CASE, TO THE EXTENT ARISING DIRECTLY OR INDIRECTLY FROM SUCH PREVENTIONS OR DELAY.
11. Placement Fee.
11.1 Both parties agree that during the Term of this Agreement and for a period of twelve (12) months thereafter, either party will pay the Placement Fee for, individually or in conjunction with others, hiring or retaining, directly or indirectly any of the other Party’s employees or subcontractors in order to compensate the other party for the internal and external costs of recruitment, interviewing, placement expenses, training, certification and other efforts relative to such person. “Placement Fee” means fifty percent (50%) of that employee or subcontractor’s annualized compensation with (including any bonuses) which shall be due and payable fifteen (15) days following the hiring of a such employee.
12. Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted for any failure or delay in fulfilling or performing any (except for payment obligations of Client for Services actually rendered), to the extent such failure or delay is caused by, or results from, acts beyond the affected Party’s reasonable control (a “Force Majeure Event”), including, without limitation: (a) nature disaster; (b) flood, fire or explosion; (c) war, invasion, riot or other civil unrest; (d) actions, embargoes or blockades; (e) national or regional emergency; (f) strikes, labor stoppages or slowdowns; (g) compliance with any law or governmental order, rule, regulation or direction, embargo, export or import restriction, quota or other restriction or prohibition; (h) shortage of adequate power or telecommunications facilities; (i) epidemic; or (j) public health emergency. A Party whose performance is affected by a Force Majeure Event shall give notice to the other Party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. During the Force Majeure Event, the non-affected Party may similarly suspend its performance obligations until such time as the affected Party resumes performance. The non-affected Party may terminate any affected Addendum if such failure or delay continues for a period of thirty (30) days or more, and if the non-affected Party is the Client, receive a refund of any amounts paid to EAGLE TECH CORP in advance for the affected Services which are directly and materially impacted by the Force Majeure event causing impossibility of performance by EAGLE TECH CORP.
13. Miscellaneous.
13.1 Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); or (c) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the addresses indicated below, or at such other address for a Party as shall be specified in a notice given in accordance with this Section 13.1.
If to EAGLE TECH CORP:
EAGLE TECH CORP,
7405 Alban Station CT, B220, Springfield VA 22150
Attn: Wilmers Perdigon, CFO
If to Client: Client Primary Address on Addendum.
13.2 Entire Agreement. This Agreement, together with Addendums, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any direct conflict between the terms and provisions of this Agreement, and any Addendum, the Addendum shall have precedence and control except as it relates to limitation of liability, indemnification and warranties which shall be controlled by this Agreement.
13.3 Assignment. Neither Party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, upon prior written notice to the Client, EAGLE TECH CORP may assign the Agreement to an Affiliate or to a successor of all or substantially all of the assets of EAGLE TECH CORP through merger, reorganization, consolidation or acquisition. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
13.4 Recording of Conversations. For training and quality purposes, each party to this Agreement acknowledges and agrees to the tape recording of conversations between the Parties.
13.5 Amendments. This Agreement may only be amended, modified, or supplemented in a writing signed by both Parties hereto. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving.
13.6 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. If no such modification is possible, this Agreement shall terminate, and Client shall pay any sums outstanding for Services actually rendered within thirty (30) days, and EAGLE TECH CORP shall refund any sums paid in advance for Services not rendered within thirty (30) days.
13.7 Choice of Law and Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Virginia without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Virginia or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the Commonwealth of Virginia. Any legal suit, action or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Virginia in each case located in Fairfax County, VA, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
13.8 Disputes; ARBITRATION. In the event that a dispute arises between the Parties in connection with, out of, or under this Agreement, the Parties agree to attempt initially to settle such dispute between themselves by conducting good faith negotiation and consultation. If the Parties are unable to settle the matter between themselves and at least thirty (30) days have elapsed since initial notification of the dispute pursuant to Section 13.1, the matter shall thereafter be resolved by alternative dispute resolution, starting with mediation pursuant to the Commercial Mediation Procedures of the American Arbitration Association (the “AAA”), and including, IF NECESSARY, A FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE EXPEDITED PROCEDURES OF THE COMMERCIAL ARBITRATION RULES OF THE AAA. EACH SUCH ARBITRATION SHALL BE CONDUCTED BY A PANEL OF THREE ARBITRATORS: ONE ARBITRATOR SHALL BE APPOINTED BY EACH OF CLIENT AND EAGLE TECH CORP, AND THE THIRD SHALL BE APPOINTED BY THE AMERICAN ARBITRATION ASSOCIATION. TO THE EXTENT THAT THE AAA PROCEDURES AND THIS AGREEMENT ARE IN CONFLICT, THE TERMS OF THIS AGREEMENT SHALL CONTROL, AND THE ARBITRATORS SHALL BE BOUND BY THE EXPRESSED TERMS OF THIS AGREEMENT. The Parties agree that each party shall bear their own costs in connection to any of the remedial activities set forth in this section.
13.9 WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING ADDENDA, IS LIKELY TO INVOLVE COMPLICATED ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
13.10 Equitable Relief. Each Party acknowledges that a breach by a Party of Intellectual Property Rights or confidentiality obligations may cause the non-breaching Party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching Party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
13.11 Attorneys’ Fees. In the event that any action, suit, or other legal proceeding by either Party against the other Party arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.
13.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Master Services Agreement as of the date first above written.
