Contract & Master Services Agreement (MSA)

THIS MASTER SERVICES AGREEMENT (this “Agreement”) is made and entered into as of [Date] (the "Effective Date") by and between ProVal Technologies, Inc., a Florida corporation with its principal place of business at 498 Palm Springs Drive, Ste. 310, Altamonte Springs, FL 32701 ("ProVal"), and (“Client, MSP;” ProVal and Client/MSP are each sometimes referred to herein as a “Party” and, collectively, as the “Parties”).

WHEREAS, Client desires to hire ProVal to perform remote computer network and systems administration, network and systems engineering, data center management, installation, troubleshooting, problem resolution and overall remote technical support to the Client in accordance with the terms and conditions set forth herein; and

WHEREAS, ProVal desires to accept such engagement in accordance with the terms and conditions set forth herein

NOW THEREFORE, in consideration of the terms and conditions set forth below and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

SCOPE OF SERVICES

ProVal shall provide the services set forth in any statement(s) of work agreed to by the Parties from time to time, each of which shall be incorporated into this Agreement (each a “SOW”). Such services and related deliverables, if any, set forth in any SOW are collectively referred to herein as the “Services”. In the event of any conflicts or inconsistency between this Agreement and any SOW, the applicable SOW shall control.
All Services shall be performed in a workman-like manner. Upon request by Client, ProVal shall prepare and deliver to Client monthly reports regarding any Services performed during each month of the term of this Agreement.
All Professional Services shall be delivered remotely from ProVal Tech’s offices. Any onsite visits at Client’s principal place of business or other location requested by Client shall (i) be only as requested by Client; (ii) be invoiced separately and (ii) require Client to be responsible for all travel, lodging, and meal expenses, which shall be agreed to and approved by Client in advance and in writing.
The Parties acknowledge and agree that from time to time during the term of this Agreement there may be additional services required by Client. The specifications and pricing of such additional services will be mutually agreed upon by the Parties and confirmed in writing (a “Change Order”) signed by an authorized representative of each Party prior to any such services being delivered. Each Change Order shall be subject to the terms and conditions of this Agreement. In the event of any conflicts or inconsistency, the terms of a Change Order shall prevail over those of the applicable SOW or this Agreement.

CONFIDENTIAL INFORMATION

For purposes of this Agreement, the term "Confidential Information" shall mean all non-public or proprietary information, data and software furnished by one Party (the “Disclosing Party”) to the other (the “Receiving Party”), whether disclosed or accessed in oral, written, electronic, graphic, machine-readable form, or other form or media, whether or not marked, designated, or otherwise identified as “confidential,” which may include but not be limited to, code, software tool specifications, functions and features, integration and shared data block specifications, financial information, corporate and ownership information, file layouts, marketing strategies, business, product or acquisition plans, current business relationships or strategies, customer lists, ideas, methods, discoveries, trade secrets, know-how, protocols, processes, other visual depictions, personal employee information, and any third-party confidential information included with, or incorporated in, any information provided by the Disclosing Party.

Except as required by applicable federal, state, or local law or regulation, Confidential Information shall not include information which:

Is or becomes available to the general public through no fault of the Receiving Party;
Was or is independently developed by the Receiving Party, without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information;
Is, or thereafter becomes, available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party was not prohibited from disclosing such Confidential Information; or
Was known by or in the possession of the Receiving Party before being disclosed by or on behalf of the Disclosing Party.

Each Party acknowledges and agrees that it may gain access to or become familiar with the other Party’s Confidential Information. Except as expressly limited or excluded above, each Party, as the Receiving Party of the Disclosing Party’s Confidential Information, shall:

Protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
Not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to perform its obligations under this Agreement (or an agreement between Client and its end-customer) or otherwise in any manner to the Disclosing Party’s detriment;
Not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s own personnel who (i) need to know the Confidential Information to assist the Receiving Party, or act on its behalf, in exercising its rights or performing its obligations under this Agreement (or an agreement between Client and its end-customer); (ii) are informed by the Receiving Party of the confidential nature of the Confidential Information; and (iii) are subject to confidentiality duties or obligations to the Receiving Party that are no less restrictive than the terms and conditions of this Agreement; and
At the request of the other Party, to return any Confidential Information of the other Party or to destroy such Confidential Information and to certify as to its destruction, except that, the Receiving Party may retain any copies of Confidential Information, regardless of whether such copies are in original form (i) as may be required to comply with the Receiving Party’s internal record-keeping policies or any applicable federal, state, or local law, regulation or regulatory authority to which it is subject; or (ii) that are maintained as archive copies on the Receiving Party’s disaster recovery and/or information technology backup systems, provided that, in either case, such copies will be permanently destroyed on the normal expiration of the Receiving Party’s backup files.

All right, title, and interest in and to any Confidential Information shall be and shall remain the exclusive property of the Disclosing Party. Notwithstanding the foregoing, all documents, designs, computer programs, computer systems, data, source code, object code, computer documentation and other work product and materials authored or prepared by ProVal in connection with the performance of the Services shall be the sole property of ProVal.

The Receiving Party may disclose the Disclosing Party’s Confidential Information under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction, provided that the Receiving Party shall first make commercially reasonable efforts to provide the Disclosing Party with: (a) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.

TERM AND TERMINATION

This Agreement shall commence on the Effective Date and continue in full force and effect as outlined in the SOW, unless terminated as provided herein.
If either Party (the "Defaulting Party") materially defaults in the performance of its obligations under this Agreement, and if such default is not cured within (30) days after written notice is given to the Defaulting Party specifying the default, then the other Party may, by giving written notice to the Defaulting Party, terminate this Agreement as of the date specified in the notice of termination. In the event of such termination by Client, Client agrees to pay in full all monies due for services delivered through the effective date of cancellation on a pro rata basis.
Each Party, insofar as it becomes a Defaulting Party, agrees that, upon receipt of any notice of default, it will immediately commence all commercially reasonable efforts to cure the specified default and to commit the resources necessary at the Defaulting Party's expense, to accomplish such cure as promptly as is reasonably possible.

LIMITATION OF LIABILITY; INDEMNIFICATION

Notwithstanding anything to the contrary contained in this Agreement, ProVal's total limit of liability on any claim, whether for breach of contract, breach of warranty, tort, negligence, or any other legal theory, and for any loss or damage arising out of, or connected to, or resulting from this Agreement shall be limited to the total fees paid by Client to ProVal pursuant to the SOW directly related to such claim.
Notwithstanding anything to the contrary contained in this Agreement, in no event shall ProVal be liable for any indirect, consequential, punitive, special, or incidental damages, including, but not limited to, loss of capital, loss of revenues, loss of profits, loss of anticipatory profits, loss of business opportunity or loss of business information, even if advised of the possibility of such damages.
Client shall, to the fullest extent permitted by law, defend, indemnify, and hold harmless ProVal, its owners, directors, shareholders, officers, agents, and employees from and against all actual claims, actions, demands, judgments, damages, liability, costs, expenses, losses, and expenses (including without limitation reasonable attorneys’ fees and other legal expenses) that arise out of, or in connection with, a breach by Client of this Agreement.

INTELLECTUAL PROPERTY TITLE AND OWNERSHIP RIGHTS

Title and all ownership and proprietary rights to the Services and the Intellectual Property incorporated therein, including all upgrades, enhancements or other alterations made by ProVal to the Services, whether originally part of the Services or added later, and whether added at the request of Client or otherwise, shall at all times remain the exclusive property of ProVal. Client shall not acquire any ownership of Intellectual Property rights in or to the Services or the Intellectual Property incorporated therein as a result of this Agreement.
ProVal grants to Client a limited, revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free, fully-paid, worldwide license to access and use the Intellectual Property incorporated in the Services during the term of this Agreement and thereafter; provided however, that ProVal will not support the content of the Services or the Intellectual Property incorporated therein after the expiration of the term of this Agreement, and ProVal makes no representations or warranties, express or implied, including without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose or otherwise (irrespective of any course of dealing, custom or usage of trade), of any Services provided here under.
“Intellectual Property” means any and all registered and unregistered rights in the following: (i) all trademark rights, business identifiers, trade dress, service marks, trade names and brand names; (ii) all copyrights and all other rights associated therewith and the underlying works of authorship; (iii) all patents and all proprietary rights associated therewith; (iv) all inventions, mask works and mask work registrations, know how, discoveries, improvements, designs, computer source codes, programs and other software (including all machine readable code, printed listings of code, documentation and related property and information), trade secrets, websites, domain names, shop and royalty rights and all other types of intellectual property; and (v) all similar or equivalent rights or forms of protection, in any part of the world.

NO MODIFICATION OR ASSIGNMENT : This Agreement may not be changed or modified unless in writing and signed by both Parties. This Agreement may not be assigned by Client without the prior written consent of ProVal.

SEVERABILITY : Should any provision hereof be deemed, for any reason whatsoever, to be invalid, illegal, or unenforceable, such provision shall be deemed severable and shall not affect the validity, legality, and enforceability of the other provisions of this Agreement.

GOVERNING LAW AND EXCLUSIVE JURISDICTION : This Agreement shall be deemed to be made and entered into pursuant to the internal laws of the State of Florida and for all purposes this Agreement shall be construed and interpreted in accordance with and be governed by the law of the State of Florida. Any action, proceeding or litigation arising from or related to this Agreement shall be filed and litigated exclusively in the state or federal courts located in Seminole County, Florida and the Parties hereby consent to jurisdiction in these courts and agree that venue is proper exclusively in these courts.

FORCE MAJEURE : Neither ProVal nor Client shall be held responsible for any delay or failure in performance under this Agreement arising out of causes beyond its control including, but not limited to, floods, fires, acts of war, terrorist acts, labor difficulties or shortages, embargoes, inability to obtain materials, equipment or transportation, or components or finished goods, acts of God, acts of the government or regulatory agencies or national disasters.

NONSOLICITATION : During the term of this Agreement and for a period of two (2) years after its termination or completion of the most recent SOW, whichever is later, each Party agrees that it will not solicit for hire or advise or assist others with the opportunity to do the same, any employees or clients of the other Party.

ENTIRE AGREEMENT; SURVIVAL : The provisions herein constitute the entire agreement between the Parties and supersede all prior agreements, oral or written, and all other communications between the Parties. Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.

IN WITNESS WHEREOF, the Parties acknowledge that each has fully read and understood this Agreement, and, intending to be legally bound thereby, executed this Agreement as of the date set forth above.