Master Services Agreement
Thank you for trusting Plexus Technology (“Plexus Technology,” “we,” “us,” or “our”) to provide you with professional information technology services. This Master Services Agreement (this “Agreement”) governs our business relationship with you, so please read this document carefully and keep a copy for your records.
Scope
1. Context. In this Agreement, any references to “Client,” “you,” or “your” will mean the entity who has accepted a quote, proposal, service order, statement of work, or similar document (electronic or otherwise) from us. (In this Agreement we refer collectively to these types of documents as a “Quote,” although the actual title or caption of the service-related documents might vary.) If we have an ongoing business relationship with you, then “Quote” will also include any confirmatory communications between you and us, such as those exchanged by email or text, in which we mutually affirm or agree to the provision or facilitation of services or products for you.
2. This document contains an arbitration provision that requires, under most circumstances, disputes to be settled by arbitration and not by a judge or jury. Please read the “Arbitration” section of this Agreement carefully. This document also contains important provisions regarding your payment obligations, automatic renewal of ongoing services, limitations of liability, and other significant matters; please read this document and consider those issues carefully before accepting a Quote.
3. This document limits or, in some cases, eliminates the liability of Plexus Technology for services that it does not provide directly to you and/or which are provided to you by third parties (defined as “Third Party Services” and “Third Party Providers,” below). Please read this document and consider such limitations carefully before accepting a Quote.
4. Applicability. The scope of our services will be as described in a Quote (collectively, “Services”). All other services, projects, and related matters are out- of-scope (collectively, “Out of Scope Services”) and will not be provided to you unless we expressly agree to do so. In addition to a Quote, many of the Services, as well as all policies and procedures governing all Services we provide or facilitate, are defined, clarified, and governed under an additional document that we will refer to in this Agreement as a “Services Guide.” Please read both the Quote and the Services Guide before accepting the Quote.
5. Version. Each Quote will be governed under the version of this Agreement in place on the date that you accept the Quote. We may change this Agreement from time to time, and modified versions of this Agreement will apply to Quotes accepted after the date of those modifications. You can determine the version of this Agreement by noting the “last updated” date indicated at the bottom of this document.
6. Conflicts. The provisions of a Quote govern over conflicting or materially different terms contained in this Agreement and the Services Guide. Conflicting language between the Services Guide and this Agreement will be interpreted in favor of the Services Guide.
7. Third Party Providers/Services. Some services may be provided to you directly by our personnel. These services are distinguishable from services that are provided to you or us by third party providers (“Third Party Providers”) and the services that Third Party Providers provide are called “Third Party Services.” Third Party Services may include help desk services, malware detection and remediation services, firewall and endpoint security-related services, backup and disaster recovery solutions, and the provision of software used to monitor the managed part of your network, among others.
8. Selection. As your managed information technology provider, we will select the Third Party Providers that provide services appropriate for your managed information technology environment (the “Environment”) and facilitate the provision of those Third Party Services to you. We reserve the right to change Third Party Providers in our sole discretion as long as the change does not
materially diminish the Services we are obligated to provide or facilitate under a Quote.
9. Reseller. We are resellers and/or facilitators of the Third Party Services and do not provide those services to you directly. For this reason, we are not and cannot be responsible for any defect, act, omission, or failure of any Third Party Service or any failure of any Third Party Provider. Third Party Services are provided on an “as is” basis only. If an issue requiring remediation arises with a Third Party Service, then we will endeavor to provide a reasonable workaround or, if available, a “temporary fix” for the situation; however, we do not warrant or guarantee that any particular workaround or fix will be available or achieve any particular result, or that Third Party Services will run in an uninterrupted or error-free manner.
Implementation
1. Advice; Instructions. We may offer you specific advice and directions related to the Services (“Advice”). We strongly suggest that you promptly follow our Advice which, depending on the situation, may require you to make additional purchases or investments in your managed IT environment (“Environment”) at your sole cost. We are not responsible for any problems or issues, including but not limited to downtime or security-related issues, caused by or related to your failure to follow our Advice promptly. If, in our reasonable discretion, your failure to follow our Advice makes part or all the Services economically or technically unreasonable or impracticable to provide or facilitate, then we may provide you with no less than ten (10) days to remediate the issue(s). If the issues continue to exist after this ten (10) day period, then we may, at our discretion terminate the applicable Services For Cause by providing notice of termination to you or, alternatively, we may adjust the scope of the Quote to exclude any impacted or affected portion of the Environment.
2. Co-Management. Co-Managed situations occur when we are providing the Services alongside another IT vendor, IT manager/department, or a third party solution provider (“Co-Managed Situations”). In Co-Managed Situations where our Services conflict with the services provided or facilitated by a Co-Managed
Provider, we will endeavor to implement our Services in an efficient and effective manner; however, we will not be responsible for any delay or inability to provide or facilitate the Services due to a Co-Managed Provider’s omissions or activities. In Co-Managed Situations, Client hereby agrees to indemnify and hold us harmless from and against any and all Environment-related issues where the Environment Issues cannot directly and unambiguously be traced back to any wrongdoing by Plexus Technology.
3. Prioritization. All Services will be implemented and/or facilitated in a scheduled and prioritized manner as we determine reasonable and necessary.
4. Modifications. To avoid a delay or negative impact on the Services, you agree to refrain from modifying or moving the Environment, installing software in the Environment, or permitting any third party to provide services for the Environment unless we expressly authorize such activity in advance.
5. Third Party Support. If, at our discretion, a hardware or software issue requires vendor or OEM support, we may contact the vendor or OEM on your behalf and invoice you for all fees and costs involved (“OEM Fees”).
6. Authorized Contact(s). We will be entitled to rely on any directions or consent provided by your designated personnel or representatives (“Authorized Contacts”). Changes to Authorized Contacts provided in writing will be implemented within two (2) business days; changes provided in person or by telephone will be implemented on the same business day.
7. Access. You hereby grant to us and our designated Third Party Providers the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the Environment solely as necessary to enable us to provide or facilitate the Services.
8. Ongoing Requirements. Everything in the Environment must be genuine and licensed. If we require certain minimum hardware or software requirements (“Minimum Requirements”), you agree to implement and maintain those Minimum Requirements.
9. Response. Our response to issues relating to the Services will be handled in accordance with the provisions of the Quote or, if applicable, Services Guide.
10. Scheduled Downtime. Scheduled Downtime will generally not occur Monday through Friday between the hours of 8:00 AM and 5:00 PM (local time in your jurisdiction) without your authorization. We will use our best efforts to provide you with at least twenty-four (24) hours of notice prior to Scheduled Downtime.
11. Client-Side Downtime. We will not be responsible for any delays or deficiencies caused by your actions or omissions, or by your Co-Managed Provider’s acts or omissions.
12. Vendor-Side Downtime. We will not be responsible for any delays or deficiencies caused by Third Party Providers, third party licensors, or “upstream” service or product vendors.
13. Transition Exception. For the first ninety (90) days following the commencement date of any Service, as well as during off-boarding activities, any response time commitments previously provided to you will not apply (the “Transition Exception”).
Fees; Payment
1. Fees. You agree to pay the fees, costs, and expenses charged by us for the Services in accordance with the amounts, methods, restrictions, and schedules described in each Quote and the Services Guide (“Fees”).
2. In addition to the Fees, you are responsible for any miscellaneous costs and expenses (not to exceed $500/month without your prior consent) that we incur in providing or facilitating the Services to you (“Miscellaneous Expenses”).
3. You are responsible for all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value add, and excise taxes).
4. We reserve the right to increase the fees, without prior notice to you and retroactively (if applicable), to accommodate increases in the number of authorized users, covered devices, and/or additional Client sites.
5. Nonpayment. Fees that remain unpaid for more than thirty (30) days when due will be subject to interest at the lower of either 1.5% per month or the maximum
allowable rate of interest permitted by applicable law. We reserve the right to suspend part or all the Services without prior notice if any portion of undisputed fees are not timely paid. Notice of disputes related to Fees must be received by us within sixty (60) days after the date on which an applicable invoice is delivered to you.
6. Minimum Monthly Fees. The initial Fees indicated in the Quote for recurring services are the minimum monthly fees (“MMF”) charged to you during the term.
7. Increases. We reserve the right to increase our monthly recurring fees; provided, however, if increases in a calendar year exceed five percent (5%) of the fees charged for the same Services in the prior calendar year, then you will be provided with a sixty (60) day opportunity to terminate (“Termination Option Period”).
8. Pass Through Increases. We reserve the right to pass through to you any incremental increases in the costs and/or fees for Third Party Services (“Pass Through Increases”).
9. Method of Payments. The fees listed in a Quote assume that all payments will be paid by ACH. Credit card payments may incur a convenience fee of up to four percent (4%). A $20.00 service charge applies to any electronic debit returned unpaid.
10. Expenses. Any costs or expenses incurred during a State of Emergency will be invoiced and payable by you.
Limited Warranties; Limitations Of Liability
1. Hardware / Software Purchases. All Third Party Products are generally nonrefundable once ordered. All Third Party Products are provided “as is” and without any warranty whatsoever as between Plexus Technology and you.
Liability Limitations. In no event will either party be liable for any indirect, special, exemplary, consequential, or punitive damages. A Responsible Party’s aggregate liability shall be limited to the amount of fees paid by you to Plexus Technology for the specific Service during the six (6) month period immediately prior to the date on which the cause of action accrued, or
$10,000, or the amounts actually paid out under a Responsible Party’s insurance policy, whichever is greater.
Waiver of Liability for Admin/Root Access. We strongly advise you to refrain from providing administrative (or “root”) access to the Environment to any party other than Plexus Technology. If we do not have exclusive access to the administrative areas of the Environment, then we will not be responsible for any Environment-related issues arising from activities at the administrative or root level that were not directly performed or authorized in writing by Plexus Technology.
Waiver of Liability for Legacy Devices. Neither we nor any Third Party Provider will be responsible for the remediation of issues arising from or related to the existence or use of Legacy Devices (outdated, obsolete, or unsupported equipment) in the Environment.
Compliance Requirements. If non-compliance by you could result in fees, fines, or penalties imposed on Plexus Technology, we will bring that situation to your attention and may implement solutions at your cost or terminate the applicable Services For Cause.
Waiver of Liability for Third Party Access. If you intentionally or knowingly provide or share access to the Environment with any third party unknown to Plexus Technology, we will not be responsible for any issues that may arise as a result.
Indemnification
You agree to indemnify us and hold us harmless from and against all fees, costs, and expenses (including reasonable attorneys’ fees) that we incur as a result of (i) your failure to comply with any applicable law, rule, or regulation, (ii) your failure to follow our service- related or license-related instructions, (iii) being required to participate in any legal action arising from your business disputes, or (iv) any third party audits necessitated by your acts, omissions, or business-related needs. Each party agrees to indemnify, defend, and hold the other party harmless from and against all losses, damages, costs, expenses, or liabilities arising from the Indemnifying Party’s breach of this Agreement.
Term; Termination
Please note: This section contains important provisions relating to the automatic renewal of managed services. Each Quote will have its own term and will be terminated only as provided in this Agreement or as provided in the Quote or Services Guide.
1. This Agreement. This Agreement is effective as of the date on which we provide a Service to you or on the date on which you accept a Quote, whichever is earlier (“Effective Date”). This Agreement will terminate automatically (i) if terminated For Cause, or (ii) thirty (30) days after the last date on which we have provided or facilitated Services for you.
2. Term. The term of the Services will be as indicated in the applicable Quote and Services Guide. Unless otherwise expressly stated in the Quote, the Services automatically renew (see “Auto-Renewal” below).
3. Termination Without Cause. No party will terminate a Quote without cause prior to the Quote’s natural expiration or termination date. If you terminate without cause and without Plexus Technology’s consent, you agree to pay the Termination Fee.
4. Termination For Cause. In the event of a material breach, the non-Defaulting Party may terminate For Cause provided that (i) written notice of the specific breach has been provided, and (ii) the Defaulting Party has not cured the default within twenty (20) days (ten (10) days for non-payment by Client). Remedies for Early Termination: If Plexus Technology terminates For Cause, or if you terminate without cause prior to expiration, you agree to pay all amounts that would have been paid had the Agreement remained in full effect (“Termination Fee”).
5. Service Tickets. The number of service tickets submitted is not, by itself, an indication of default by Plexus Technology.
6. Client Activity as a Basis for Termination. If unacceptable acts or behavior render it impracticable to provide Services and the activity does not cease after notice, Plexus Technology may terminate For Cause with ten (10) days written notice.
7. Auto-Renewal. Unless otherwise expressly stated in the Quote, managed Services will automatically renew for contiguous terms equal to the initial term unless either party provides written notice of non-renewal no less than thirty (30) days before the end of the then-current term.
Equipment / Software Removal. Upon termination, you agree to return all Plexus Technology-supplied equipment. Missing or damaged items will be invoiced at full replacement value.
Software Agents. You will not remove or disable any Software Agents without our express direction.
Transition; Deletion of Data. Transition assistance requires (i) all fees paid in full, and (ii) payment at our then-current hourly rate. Software configurations custom-created by us are our proprietary information. We will have no obligation to store or maintain any Client data following termination.
Confidentiality
1. Defined. Confidential Information means all non-public information provided by one party to the other, including customer-related data, customer lists, internal documents, internal communications, proprietary reports and methodologies.
Use. The Recipient will keep Confidential Information fully confidential and will not use or disclose it except (i) as expressly authorized in writing, (ii) as needed to fulfill obligations under this Agreement, or (iii) as required by law.
Due Care. The Recipient will exercise at least a commercially reasonable level of care with respect to Confidential Information.
Duration. The confidentiality provisions shall continue for no less than seven (7) years after the last date on which we provide or facilitate Services. Neither party shall ever disclose the other party’s trade secrets.
While Plexus Technology may occasionally come in contact with NPI (Nonpublic Personal Information) through its implementation of the Services, Plexus Technology agrees to:
maintain physical, electronic, and procedural safeguards that comply with applicable laws;
not disclose or use NPI other than to carry out purposes disclosed in this Agreement;
maintain NPI only for as long as necessary to provide applicable Services;
return or securely destroy all NPI upon completion or termination of applicable Services; and
upon request (no more than once per year), complete a Client-provided risk assessment questionnaire.
Ownership
Each party is, and will remain, the owner of its Intellectual Property. We own any software, codes, algorithms, or other works of authorship that we create while providing the Services to you. Third party software is licensed, not sold, to you.
Arbitration
Except for collections actions or small claims court matters, all disputes shall be settled by arbitration before one arbitrator administered by the American Arbitration Association (AAA). There is no jury involved in arbitration, and by agreeing to arbitrate you are waiving any right to a trial by jury. The arbitration shall take place in our office unless we agree to a different venue. The prevailing party shall be entitled to an award of reasonable attorneys’ fees and costs.
Terms Applicable To Resale Of Licenses
1. Single User License. Each License permits a single licensee to access and use the software in a single session.
2. License Enforcement. The Licensor reserves the right to monitor and suspend use for violations.
3. EULA. Each licensee must accept and comply with the Licensor’s end user license agreement.
4. No Subsequent Resale of Software. Software licenses are not permitted to be resold unless the Quote specifically states otherwise.
5. No Infringement. No licensee shall engage in any activity that violates Licensor’s intellectual property rights.
Miscellaneous
Incident Mitigation Coverage. If you intend to apply for insurance coverage for an incident, you are advised to first notify your insurance carrier prior to requesting remediation from us.
Changes to Services Guide. We reserve the right to modify our Services Guide from time to time. You will be notified of material changes by email.
End User Agreements. If acceptance of an End User Agreement is required, you grant us permission to accept it on your behalf.
Devices. You represent and warrant that we are authorized to access all Devices connected to the Environment. We are not responsible for issues caused by Unknown Devices.
Compliance; No Legal Advice. Unless otherwise expressly stated in a Quote, the Services are not a compliance solution. Client is responsible for obtaining its own legal representation related to applicable laws.
No Fiduciary. No fiduciary relationship exists or will exist between us beyond the specific Services provided.
Virtual Security. No security solution is one hundred percent effective. We do not warrant that any security-related service will be capable of detecting or removing all threats. You are strongly advised to obtain insurance against cyberattacks, data loss, and privacy-related breaches.
Security Incidents. The Services do not include the remediation of a Security Incident unless otherwise expressly stated in a Quote. All suspected or known Security Incidents must be reported to us immediately.
No Poaching. During the term and for one (1) year following termination, neither party will directly or indirectly hire or solicit the other party’s employees. Liquidated damages for violation: $100,000 or the employee’s one-year compensation, whichever is greater.
Assignment. Neither this Agreement nor any Quote may be assigned without prior written consent, except in connection with a merger, consolidation, or sale of substantially all assets.
Time Limitations. Any action arising from the Services must be commenced within six (6) months after the cause of action accrues.
Governing Law; Venue. This Agreement will be governed by the laws of the state of Arizona. Exclusive jurisdiction and venue: Maricopa County, Arizona.
Access Licensing. Fees for Access Licenses (e.g., Microsoft NCE, Cisco Meraki per-device licenses) are non-mitigatable and must be paid in full for the entire term regardless of reason for termination.
Force Majeure. Neither party will be liable for delays or failures due to circumstances beyond such party’s reasonable control.
Survival. Provisions intended to survive termination will survive. Unenforceable provisions shall be excised and the remainder enforced in full.
Plexus Technology, Inc. or Plexus Technology Solutions, LLC | 1423 S. Higley Rd., Suite 120, Mesa, AZ 85206 | 480.300.4600