Master Services Agreement
MANAGED SECURITY SERVICES AGREEMENT

This MASTER SERVICES AGREEMENT (the “Agreement”) is entered into and effective as of the signing of any agreement, or documentation with UNITI Cyber (the “Effective Date”), by and between UNITI Cyber Solutions, LLC, Managed Security Service Provider (“MSSP”), a Kansas Corporation with principal offices at UNITI Cyber Solutions 10940 Parallel Parkway Kansas City KS 66109 United States, and [Client], located at, [Client address], (“Customer”).  In this Agreement, MSSP and Customer are sometimes referred to individually as a “Party” and collectively as the “Parties.”

 

 

 

Background:

 

MSSP is in the business of providing outsourced IT security services, including best efforts detection, investigation and remediation of misuse and abuse of network resources occurring behind the corporate firewall based upon agreement and implementation of a set of best practices security Policies & Procedures.

 

Agreement:

 

In consideration of the rights and benefits received in connection with this Agreement, the Parties agree as follows:

 

  1. SERVICES.  MSSP agrees to provide to Customer, and Customer agrees to procure from MSSP, certain IT security services and equipment (collectively, “Services”), as described more fully in Policies and Procedures attached hereto as Exhibit A.     

  2. EFFECTIVE DATE.  The installation date will be the Effective Date confirmed in writing by MSSP.  Customer agrees to accept Services on the Effective Date.

  3. HARDWARE.  Customer may purchase or MSSP may recommend that Customer purchase certain computer-related equipment (“Hardware”).  Customer acknowledges that MSSP is not the manufacturer of the Hardware and makes no warranties of any kind with respect to the Hardware, which is provided by MSSP "AS IS."  If Customer purchases Hardware from MSSP, MSSP will use commercially reasonable efforts to assign to Customer all end-user warranties and indemnities relating to the Hardware.  If MSSP is not permitted to assign any of such end-user warranties and indemnities through to Customer, MSSP will enforce such warranties and indemnities on behalf of Customer to the extent MSSP is permitted to do so under the terms of the applicable third party agreements.  All costs associated with delivery of Hardware to Customer will be paid by Customer.  Title and risk damages or loss to Hardware will pass to Customer upon delivery to Customer; provided however, MSSP retains a security interest in each item of Hardware until MSSP receives payment in full for such Hardware. 

  4. TERM.  The term of this agreement is one (1) year beginning on the Effective Date.  Subject to the earlier termination provisions set forth herein, at the end of the initial term, this Agreement will automatically renew for consecutive one (1) year Service Term(s), subject to continuing payment of applicable fees and charges and Customer’s compliance with terms and conditions of this Agreement. Either Party may terminate this agreement upon written notice of non-renewal at least 30 days prior to the expiration date of the then current term.

  5. RATES AND CHARGES.  Services will be billed on a monthly basis for amount agreed upon per month in statement of work (SoW) and billing documents.  Any additional work outside of the scope will be at an hourly rate of $150.  MSSP may adjust the rates and charges for the renewal terms upon written notice provided at least 30 days prior to the end of the Service Term or any renewal hereof. 

  6. PAYMENT.  Subject to credit review, MSSP shall invoice Customer for all Service charges provided to Customer for each month of Service, including both monthly recurring charges (“MRC”) (pro-rated for Service commencing during the month) and non-recurring charges (“NRC”) for projects outside the scope of the Services and for one-time charges, if any. All amounts stated on each invoice are due upon receipt. Payments are considered delinquent 30 days after invoice date.  Customer shall pay the amounts set forth in the monthly invoice without deduction, offset or delay for any reason. Restrictive endorsements or statements on checks accepted by MSSP will not be binding upon MSSP.   All payments are to be made in U.S. dollars.  MSSP may assess a late fee of 1½% per month (or the maximum rate allowed under state law, if less) on all balances not paid when due.  Customer will pay any and all costs incurred in collection of rates and charges due and payable, including reasonable attorneys’ fees and costs of collection, whether or not a suit is instituted. 

  7. TAXES.  Customer is responsible for payment of any and all federal, state and local taxes, charges or surcharges imposed on or based upon the provision, sale or use of Services (excluding taxes based upon MSSP’s net income or property).  MSSP will collect all such taxes, charges or surcharges unless Customer provides MSSP with proof of exemption.  Customer will indemnify MSSP relative to such exempt status.

  8. COMPLIANCE WITH LAWS.  This Agreement is subject to all applicable federal, state and local laws and regulations, rulings, orders, and other actions of government agencies (“Rules”).  MSSP will use commercially reasonable efforts to obtain, retain and maintain such approvals and authorizations that are directly applicable to MSSP’s performance of Services.  If any such Rule adversely affects the Services or requires MSSP to provide Services other than in accordance with the terms of this Agreement, MSSP may, without liability to Customer, terminate the affected Services upon 30 days prior written notice to Customer. In performing their obligations under this Agreement, the Parties will comply with all applicable federal, state and local laws, regulations, rules and orders.  It is MSSP’s policy to cooperate with any court orders, subpoenas, and other similar government requests ordering MSSP to disclose information about MSSP’s customers’ use of Services, and Customer consents to such disclosures. 

  9. ACCESS TO PREMISES.  Customer will grant MSSP and/or MSSP’s partners, or suppliers access to Customer’s premises for the installation, operation, removal, repair and scheduled and unscheduled maintenance (with reasonable notice) of equipment for the Services hereunder, to the extent reasonably determined by MSSP.  Customer shall provide all necessary preparation and support for installation, relocation of services after installation, and obtain any needed approvals from owners or managers of such premises and shall ensure that MSSP and/or its supplier personnel have ready access to all relevant portions of premises.  Customer acknowledges that failure to cooperate regarding such access will release MSSP from its obligation to install, support or perform Services and Customer will be liable for any charges or fees that result from such denial of access, including fees and costs for missed appointments.

  10. SCHEDULE. MSSP estimates that 2 hours per month will be required to complete the tasks and deliverables herein and are included in the cost of the Services provided.  Additional time to Investigate and Remediate issues requested by Customer through the automated workflow process of the Service or through any other communications with MSSP beyond 2 hours per month are outside of the scope and will be performed on a time and materials basis. MSSP will use its best efforts to remediate security issues as quickly as possible and will coordinate with Customer should any scheduled downtime be necessary.

  11. SCOPE CHANGES. MSSP is able to provide a best effort estimate of time, resource needs, and cost of any additional work outside the scope of the Services.  Customer will have the final determination as to which projects beyond the scope of the Services should be completed by MSSP and which should be postponed to a later date or altogether dismissed. No changes in scope will be accommodated unless Customer has approved the change and any potential increase in schedule and cost.  Nevertheless, Customer agrees that if a security threat or vulnerability is likely to cause imminent and substantial impact to the computer network or the operations of Customer’s business, Customer authorizes MSSP to take such action as it deems necessary provided such work does not exceed a total cost of $1000 per project. Customer is responsible for making key individuals available to MSSP, as MSSP may need to conduct interviews, meetings, conference calls, and presentations with respect to the project.

  12. WARRANTY.  MSSP warrants that the Services will be provided in a professional and workmanlike manner in accordance with industry standards.   MSSP shall provide Customer with access to a customer service staff member Mondays-Fridays (other than federal holidays) from 8:00 a.m. to 7:00 p.m. Eastern Time.  MSSP shall use reasonable efforts to respond to each phone and email query within the current business day.  If a phone or email inquiry requires on-site support, MSSP shall use reasonable efforts to provide such on-site support within one (1) business day after receiving the Customer question or request.  For any breach of this warranty, Customer’s sole and exclusive remedy and MSSP’s sole and exclusive liability, shall be for MSSP to correct any reported failure to provide the Services causing a breach of this warranty.

  13. LIMITED WARRANTY.  MSSP does not warrant that Services will be provided without interruption.  MSSP does not warrant or guaranty secure operation of the Services or of any systems, or that it will be able to prevent service disruptions or unauthorized access.  MSSP DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE.

  14. LIMITED LIABILITY.  IN NO EVENT SHALL MSSP BE LIABLE, UNDER ANY THEORY, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING loss of business, lost profits or revenue, failure to realize expected savings, lost data or any failure of security resulting in any way from Customer’s use of the services ARISING OUT OF, OR RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF MSSP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. 

  15. IN NO EVENT SHALL THE LIABILITY OF MSSP UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER PURSUANT TO THIS AGREEMENT. 

  16. CONFIDENTIALITY.  Each Party acknowledges that the other Party may disclose information about its business, products and/or technology to the other which it considers to be proprietary and confidential (“Confidential Information”).  For purposes of this Agreement, the term “Confidential Information” shall be limited to that non-public information disclosed hereunder that the recipient knows or reasonably should know is confidential to the disclosing party.  Neither Party shall disclose Confidential Information disclosed to it by the other Party to any third party (other than its agents and employees who are subject to appropriate nondisclosure obligations) or use the Confidential Information for any purpose other than the performance of this Agreement.  The foregoing restrictions shall not, however, apply with respect to any Confidential Information which: (i) was in the public domain at the time of disclosure or subsequently enters the public domain other than through a breach of this Agreement, (ii) was known to the recipient at the time of disclosure, (iii) is independently developed by the recipient without use of, or reference to, the disclosed information, (iv) is disclosed with the prior written approval of the disclosing party, or (v) becomes known to the recipient from a source other than the disclosing party without breach of this Agreement and otherwise not in violation of the disclosing party’s rights.

  17. TERMINATION AND CANCELLATION. Either Party may terminate this Agreement upon 30 days advance written notice to the defaulting party, if the defaulting party: (a) materially breaches any term or provision herein and fails to cure such material breach; or (b) makes an assignment for the benefit of creditors; or (c) has any proceedings filed against it under any law relating to creditor’s rights in general.  If Customer materially breaches the Agreement and fails to cure the breach within the cure period described in this section, then MSSP may terminate without incurring any charges or fees. If Customer fails to pay invoices within 30 days after the invoice date, MSSP will issue a notice of default to Customer.  If invoices remain unpaid 30 days after the invoice date, MSSP may do any combination of the following at its sole discretion and without further notice:  terminate any or all of Services and treat any such termination as an early termination under this section, cancel or stop provisioning any pending Services not yet installed, discontinue support for any Services, or terminate this Agreement.  MSSP may set-off and apply any and all credits, rebates, deposits, accounts or monies owed to Customer against any and all of Customer’s obligation under this Agreement.  These rights are in addition to all other rights and remedies available to MSSP under applicable law.  If MSSP determines that it cannot provide Service to Customer efficiently or on the terms and conditions contemplated in this Agreement, MSSP may terminate such Service Orders upon thirty days’ notice without liability and without further obligation. The provisions of this Agreement which require performance following the termination of this Agreement or by their nature continue and survive shall survive such termination. 

  18. FORCE MAJEURE.  In the event that either Party’s performance, other than payment, is delayed, prevented, obstructed, or inhibited because any act of God or any cause beyond such Party’s reasonable control, the Party’s performance will be excused and the time for the performance will be extended for the period of delay or inability to perform resulting from such occurrence.  The occurrence of such an event will not constitute grounds for a declaration of default by either Party.

  19. NOTICES.  All notices required by this Agreement or relating to the Services herein will be deemed given if mailed postage pre-paid, registered or certified mail, return receipt requested, or by nationally recognized overnight courier. 

  20. ASSIGNMENT.  Customer may not assign, transfer or delegate its obligations under this Agreement, in whole or in part, without the prior written consent of MSSP (including whether by contract, operation of law, merger, sales of assets, sale of stock, consolidation or other similar transaction); such consent not to be unreasonably withheld.  Any purported assignment, transfer or delegation in derogation of the foregoing shall be null and void.  MSSP may assign its rights under this Agreement and may also delegate its duties, in whole or in part, and may subcontract the performance of Services to third parties, including, but not limited to, obtaining services from other suppliers or carriers at its sole discretion, or assign any of its other rights hereunder, provided that, in the case of delegation or subcontracting, MSSP shall remain responsible to Customer under this Agreement.   MSSP is entitled to pledge this Agreement as collateral for financing.  To the extent permitted under this Agreement and permitted by law, this Agreement will bind and inure to the benefit of each Party’s successors and permitted assigns.

  21. WAIVER.  The failure of either Party to insist upon the performance of any provision herein or to exercise any right or privilege granted to it hereunder will not be construed as a waiver of such provision or any provision herein, and the same will continue in full force.  The various rights and remedies given to or reserved by either Party, or allowed by law, are cumulative, and no delay or omission to exercise any of its rights will be construed as a waiver of any default or acquiescence.

  22. AMENDMENTS, MODIFICATIONS AND SUPPLEMENTS.   Any amendment, modification, supplement or change hereto must be in writing and signed by the Parties.

  23. GOVERNING LAW.  The laws of the State of Georgia Company Info Tab, without regard to conflict of laws principles, shall govern the interpretation of this Agreement.  All disputes related to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts in Georgia Company Info Tab. 

  24. ATTORNEY FEES.  In the event that any suit or other action is instituted to interpret or enforce this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees, including those incurred on appeal, as determined by the court.

  25. ENTIRE AGREEMENT, SEVERABILITY.  This Agreement, together with the Service Order(s), which is attached hereto and is incorporated herein by reference, and any addendum(s) and exhibit(s), set forth the entire agreement of the parties with respect to the subject matter hereof.   If any provision of this Agreement is held to be invalid, void, or unenforceable, the remainder of the provisions will nevertheless remain unimpaired and in effect. By signing any agreement with UNITI Cyber, Client agrees to abide by this MSA.

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