Contact us

Master Service Agreement

The following terms and conditions govern our business relationship with our clients. Please read these terms carefully and print a copy for your records.

  1. Scope of MSA; SOW: This Master Service Agreement (“MSA”) governs all services that Techmentum, LLC, a New Jersey limited liability company (“Company”) performs for you (“Client”), as well as purchases of hardware, software, support and maintenance services, and/or subscription services (collectively, the “Services”). Company and Client shall hereinafter collectively be referred to as the “Parties” and individually as the “Party”. The Services will be described in one or more quotes, proposals, or statements of work (each, a “SOW”), and once Company and Client mutually agree to a SOW, the SOW will become a part of, and governed under, the terms of this MSA. The Services will commence on the date specified in each SOW (the “Effective Date”) and will continue to be provided until terminated, pursuant to the terms of this MSA and each SOW. In the event of any conflict between the terms of a SOW and those in this MSA, the terms of the SOW will prevail over this MSA.
  2. Term: This MSA will begin as of the Effective Date and will continue until all SOW’s expire or are terminated in accordance with their terms.
  3. Termination: A SOW may be terminated by either Party, provided that the Party wishing to terminate the SOW provides written notice to the other Party at least sixty (60) days in advance of the SOW’s Renewal Date.
    1. Termination by Company: The Company may suspend or terminate (or suspend then subsequently terminate) its provision of all or any of the Services under this MSA immediately if:
      1. Client fails to pay an amount owing under a SOW;
      2. Company determines in its sole discretion that Client is in breach of any term of this MSA or any SOW;
      3. Client is insolvent; or
      4. Client dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving.
    2. Termination by Client: The Client may suspend or terminate (or suspend then subsequently terminate) this MSA and associated SOWs if:
      1. Company commits a material breach of this MSA; or
      2. Client affirmatively declines any increase in fees or other modifications made by Company in accordance with Section 5 of this MSA.
    3. Upon termination of this MSA by the Client without the required sixty (60) days’ notice, termination by the Company in accordance with Clause (a) of this Section, or termination by Client due to a Fee increase by the Company in accordance with Section 5, the Client shall pay in full all Fees due to the Company for the remainder of the current Term.
    4. Upon expiration or termination of this MSA for any reason:
      1. Client will return to Company any equipment owned by Company that is loaned to or borrowed by Client pursuant to this MSA or any SOW. Client is liable for and agrees to pay for and/or replace any damaged equipment.
      2. Company shall not be obligated to restore anything to its original condition.
      3. In addition to any and all other remedies at law or equity available to Company, all obligations of Client under this MSA shall remain in full force and effect until the expiration of the applicable statute of limitation.
  4. Transition Services: For the purposes of this MSA and associated SOWs, Transition Services shall mean the orderly transition of the Services to another provider or otherwise, including but not limited to provision of system passwords and administrative controls. The Parties acknowledge and agree that the Company’s provision of Transition Services will require payment in full of all Fees due under this MSA and associated SOWs as well as a separate SOW executed by the Parties covering the Transition Services.
  5. Recommendations/Updates: Company may, from time to time, give advice or recommendations to Client related to the Services.
    1. Company will not be responsible for any damages, including lost profits, revenue, data, or otherwise caused by Client’s failure to follow Company’s advice or recommendations.
    2. If Client does not follow the recommendations or advice provided by Company within 30 days of such being provided by Company, Company may, in its’ sole discretion:
      1. suspend Services until Client follows the recommendations or advice; or
      2. increase the fees for the Service by thirty (30) days written notice to Client setting out the new Fees. Such Fees shall be defined in accordance with the relevant SOW.
    3. Client may request specific advice or recommendations from Company as to any aspect of the Services and Company may, in its sole discretion, determine whether or not to respond to such a request.
  6. Assumptions and Minimum Requirements: The scheduling, Fees and provision of the Services, as defined in the relevant SOW, are based upon the following assumptions and minimum requirements:
    1. Client accepts and acknowledges that during the Term any use of administrative controls by Client’s employees, staff, personnel, contractors, or consultants shall require the Company’s approval.
    2. Client accepts and acknowledges that Company will not be required to provide the Services unless Client ensures that their Technology Systems meet the Company’s current minimum requirements. For the avoidance of doubt, costs required to bring Client’s environment up to these minimum requirements shall be borne solely by Client. As used in this MSA and relevant SOWs, Technology Systems shall mean and includes, without limitation: Computer systems, software, data, telephony, and messaging systems; technology “as-a-service” products and services such as Software-As-A-Service and Infrastructure-As-A-Service; Printers and other peripheral devices; Back-up systems; and networking and internet connectivity.
    3. Company may, at its sole discretion, agree to provide Services where the Technology Systems do not meet the Company’s minimum requirements, upon request from Client.
    4. If patches and other software-related maintenance updates (“Updates”) are provided under a SOW, Company will install the Updates only if Company has determined, in its reasonable discretion, that the Updates will be compatible with the configuration of the System and materially beneficial to the features or functionality of the affected software or hardware. Company will not be responsible for any downtime or losses arising from or related to the installation or use of any Update, provided that the Update was installed in accordance with the manufacturer’s or applicable vendor’s instructions.
    5. If, in Company’s discretion, a hardware or software issue requires vendor or original equipment manufacturer (OEM) support, Company may contact the vendor or OEM (as applicable) on Client’s behalf and pass through, without markup, all fees and costs incurred in that process. If such fees or costs are anticipated in advance or exceed $500, Company will obtain permission before incurring such expenses on Client’s behalf unless exigent circumstances require otherwise.
    6. Client will provide:
      1. documentation related to the existing and proposed systems, and reasonable access to information related to the Technology Systems as needed. This could include system and platform designs, network architecture, hardware and software specifications, passwords, and any other documentation or information requested by Company necessary to provide Services described in this MSA and SOWs.
      2. copies of all currently operational software programs.
    7. Client will:
      1. ensure that all its employees and any other persons permitted to access the systems are appropriately trained, competent and do not misuse or recklessly or negligently damage the Technology Systems;
      2. give Company, its employees and consultants reasonable access to the Client Locations, as defined in the relevant SOW, and Technology Systems to enable Company to carry out and provide Services. Client acknowledges and accepts that such access may interrupt or disrupt the Business while such work is being conducted;
      3. provide Company, its employees and consultants free, safe, and sufficient access to Client’s facilities where Services require on-site performance, including parking, ample working space, electricity, Internet access, and user interface devices to access equipment;
      4. designate a particular recurring time period (the “Maintenance Window”) during which Client devices and Services may be temporarily unavailable for maintenance purposes;
      5. where requested by Company acting reasonably, shut down or cease using the whole or part of its Technology Systems so as to allow Company to provide Services, until permitted by Company to resume use;
      6. ensure that all its employees, agents and contractors co-operate with Company, its employees and consultants at all times and provide Company with support and assistance as reasonably required. Experience shows most system problems and errors can be corrected over the phone as a result of close cooperation between the user and the analyst or technician;
      7. allow Company to load any necessary management or support software onto assets.
    8. If it is impractical for Client to shut down or cease use of the Technology Systems at the time requested by Company, Client must notify Company as such and the Parties must reschedule such work to occur at a time appropriate for both Parties. For the avoidance of doubt, if Client wishes to reschedule work under this clause, Company will not in any circumstances be liable for any loss, damage or delay which occurs in connection with this clause.
    9. Client warrants to Company that it has not withheld any material information about their Technology Systems or business.
  7. Fee and Payment Schedule: Fees will be calculated as defined under the provisions of the SOWs. Client also agrees to pay or reimburse Company for all actual, necessary, and reasonable expenses incurred by Company in performance of such SOW’s. All Fees owed by Client to the Company in accordance with this MSA and associated SOWs shall be due and payable in advance of receiving the Services (“Due Date”). Services will be suspended if payment is not received by the Due Date. A re-connect fee may be charged to Client in the event that Company suspends Services due to non-payment. For the avoidance of doubt, Company shall have no liability to Client for any loss or damage suffered or incurred in respect to the suspension.
    1. Taxes: All fees and charges for Services are exclusive of any sales or use taxes and other federal, state, municipal, or other governmental taxes or levies applicable to the sale or use of Services hereunder (“Taxes”) now in force or enacted in the future, all of which Client shall bear in full. Client shall indemnify and hold harmless Company, its officers, employees, and agents for Taxes.
    2. Direct Debit: If Client wishes to stop or defer a direct debit payment, it must notify Company in writing at least 14 days before the next payment day. Client accepts and acknowledges that it is Client’s responsibility to ensure that there are sufficient clear funds available in the account to allow the debit payment to be made.
    3. Interest: Interest on an unpaid account balance will accrue at the rate of 1.5% per month. Any unpaid payment is due in full immediately and will cause interest to accrue at the rate of 1.5% per month on the entire remaining balance of the total bill to date. In addition to all of its other rights at law or in equity, if Client is late in any payments hereunder, Company may, in its sole discretion, upon written notice to Client, require a security deposit or other assurances from Client that Company deems appropriate to secure Client’s future payment obligations. Client shall pay and hold the Company harmless from all of Company’s costs of collection of payments due under this MSA, including but not limited to collection, agency fees, reasonable attorneys’ fees and court costs.
    4. Returned Checks: Client acknowledges that Company will charge Client a $25.00 service charge for checks that are returned by Client’s bank for insufficient funds. Client agrees to pay said charge in addition to any other charges or fees that Company may be entitled to. If Client tenders a check that is returned for insufficient funds, Client agrees to pay all future payments in certified funds, and acknowledges that personal checks will no longer be an acceptable form of payment.
    5. All invoices provided to Client by facsimile or email will be, under all circumstances, deemed to have been received by Client on the date sent by Company.
    6. Credit Approval and Security Deposit: Client shall provide Company with credit information as requested, and delivery of Services is subject to credit approval by Company. If Client is required to pay Company a security deposit, Company may, in its sole discretion, without further notice to Client and without prejudice to Company’s other remedies, apply part or all of the security deposit toward the cure of any Client default. In such event, Client shall, within 5 business days after written demand, pay Company an amount equal to the amount so applied to restore the security deposit to its original amount. Company may, in its sole discretion, deposit the security deposit in an account with its own funds. Client shall not be entitled to receive interest on the security deposit. Any part of the security deposit not used by Company shall be returned to Client within 60 calendar days after this MSA terminates, as determined by the Company in its sole discretion.
    7. Variation: If Client acquires, varies and/or installs software systems, hardware, telephony or any other Technology Systems componentry, Company may, in its sole discretion:
      1. refuse to maintain or provide Services with regards to such new systems, componentry and hardware; or
      2. adjust the Fees to reasonably reflect the change in the Service which will be provided.
    8. Variation for renewal: The Fees in the SOW will be subject to adjustment upon each renewal, by Company giving Client 30 days written notice.
  8. Additional Projects: All services requested by Client that are not expressly included within the terms of the relevant SOW shall, if agreed by Company, as determined in its sole discretion, be considered additional services, to which this MSA, shall apply, and will be billed as separate, individual services from those contemplated herein, subject to the same payment terms and conditions outlined in this MSA and the relevant SOW.
  9. Terms of Service:
    1. Acceptable Use: Client acknowledges that there are risks that could result in the loss of Client privacy, confidential information, data and property. Client acknowledges that Company exercises no control over the content of information passing through Client equipment or Company equipment or other portions of the Internet utilized in connection with Services, and that it is Client’s sole responsibility to ensure that the information it transmits and receives is secure and complies with all applicable laws and regulations. Company has no obligation to provide security or protection for Client’s privacy, confidential information, or data other than as specifically stated in this MSA.
    2. Unauthorized Access or Use: Company shall have no liability to Client for any unauthorized access or use, corruption, deletion, destruction, or loss of any data or applications. Company shall have no liability to Client for any defects or damages to equipment, any data center, or services. For the avoidance of doubt, under no circumstances shall Company be responsible or liable for any third-party equipment or third-party software or damages that arise as a result of defects or issues related to the third-party equipment or software.
    3. Reasonable Use: This MSA, associated SOWs, and the Services shall be limited to reasonable use, as determined at the Company’s sole discretion. Company reserves the right to prevent or stop any use by Client that appears to Company, at its sole discretion, to constitute Unreasonable Use. The following is a non-exhaustive list of practices that may constitute Unreasonable Use: (i) Use of the Services for any unlawful purpose, including, but not limited to any usage that encourages conduct that would constitute a criminal offense, give rise to civil liability, or violate any applicable law; (ii) Usage that is unduly burdensome; and (iii) Any other usage that Company determines, at its sole discretion. Client shall not directly or indirectly engage in actions that are determined by the Company, at its sole discretion, to constitute Unreasonable Use, as defined in this Section. Usage by Client in violation of this Section shall constitute a material breach of this SOW, entitling Company to immediately terminate the SOW without notice or opportunity to cure.
    4. Disclaimer: Services shall be provided by Company in accordance with the recommended practices of the industry as determined in Company’s sole discretion. Except as expressed in this MSA, Company makes no guarantees, representations, or warranties, express or implied, with respect to the Services. Company shall provide the Services in accordance with this MSA, but the Company shall not be liable for legal or regulatory compliance, information technology security or data breaches, or use of administrative controls by Client’s employees, staff, personnel, contractors, or consultants without the Company’s approval.
    5. Backup & Disaster Recovery Services: Unless purchased under a SOW, Client is responsible for procuring and maintaining Backup & Disaster Recovery services, as defined in the relevant SOW.
  10. Non Solicitation & Non Hire: During the term of this MSA and for a period of two (2) years after termination of this MSA, Client agrees that Client will not, directly or indirectly, hire or solicit for hire any of Company’s employees, staff, personnel, contractors or consultants.
  11. Confidentiality:
    1. Definition: For purposes of this MSA and associated SOWs, “Information” shall be defined as any and all information or data stored in any manner on any media or transmitted or received orally, visually, audibly, or tactually that the Parties access, receive, possess, use, or interact with by or through conduct related to, arising from, or occurring under this MSA. The Parties warrant that they will never inadvertently or otherwise use, disclose, provide access to, or transfer to any person or entity Information of the other Party except: (i) As reasonably necessary to provide Services under this MSA; or (ii) With the other Party’s prior, written permission. Information shall not include information or data which: (i) Was demonstrably and lawfully known or possessed by the receiving Party prior to accessing, receiving, possessing, using, or interacting with the Information that resembles the information or data at issue; (ii) Becomes rightfully known to or possessed by the receiving Party from a third party under no obligation to the Client or Company to maintain confidentiality; (iii) Is or becomes publicly available through no fault of, or failure to act by, Company or Client in breach of this MSA; (iv) Is required to be disclosed in a judicial or administrative proceeding or is otherwise required to be disclosed by applicable law; or (v) Is or has been independently developed by employees, contractors, consultants, or agents of Company or Client without violating this MSA or accessing, receiving, possessing, using, or interacting with any Information. Information shall not fall within the foregoing exceptions merely because it, or a portion thereof, is expressed in more general terms publicly or in items in Client’s or Company’s possession.
    2. Degree of Care: Each Party shall protect Information from the other Party with at least the same degree of care with which the Party protects their own trade secrets, employees’ personal information, or similar confidential information, but in no case with less than a reasonable degree of care.
    3. Injunctive Relief: Each Party further agrees that a violation of this Section will cause the other Party irreparable harm and that this Section is enforceable through injunctive relief.
    4. Compelled Disclosure: Notwithstanding anything in this MSA to the contrary, if a Party is compelled by deposition, interrogatory, request for documents, subpoena, civil investigation demand, or similar process to disclose any Information, the Party so compelled shall: (i) Provide the other Party with prompt, written notice of such compulsion so the other Party can seek a protective order or other appropriate remedy or waive compliance with the terms of this MSA; (ii) Exercise reasonable efforts and cooperate fully with the other Party, to the extent permitted by law, to resist or narrow the scope of such requirement and the scope of such disclosure; and (iii) If compelled to actually disclose Information, disclose only the Information the Party’s legal counsel advises must be disclosed and take reasonable steps to have the disclosed Information kept confidential.
    5. Termination: Except as otherwise stated, the Client’s obligations under this Section shall continue beyond the termination of this MSA.
  12. Intellectual Property:
    1. Ownership of Intellectual Property Rights
      1. Unless expressly specified otherwise in the MSA or SOW, Company (or its licensors) will own all Intellectual Property Rights in all materials and deliverables (including any software and documentation) provided by Company to Client or created or developed by Company in the course of providing the Services.
      2. Client assigns to Company any rights Client has in those materials and deliverables.
    2. Restrictions on Use: As part of Services, Company may, in its sole discretion, permit Client to use certain software or documentation (this software and documentation, the “Products”) developed and owned by Company or its third-party software licensors. The Products are neither sold nor distributed to Client and Client may use them solely as part of Services and for no other purpose, only through the Term of the SOW’s. Client shall not, and shall not permit others including its employees and agents to, reproduce, reverse engineer, de-compile, disassemble, alter, translate, modify, adapt, market, resell, or sublease any Products, Software, Tools, or Services. No license, title, or right is granted or transferred to Client in or to any service marks, trademarks, copyrights, patents, trade secrets, or any other intellectual property rights of Company (“Proprietary Information”), and Client shall not have any right to use any Proprietary Information, or any Company software or hardware. Company reserves the right to take any action necessary to prevent harm to the software, services, data center, Company space, personnel, or Company’s property (and that of its affiliates, vendors and customers) or other persons.
  13. Governing Law: This MSA shall be governed by and construed in accordance with the laws of the State of New Jersey without reference to principles of conflicts of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of New Jersey.
  14. Force Majeure: For purposes of this MSA, “Force Majeure Event” means, with respect to a Party, any event or circumstance, whether or not foreseeable, that was not caused by that Party (other than a strike or other labor unrest that affects only that Party, an increase in prices or other change in general economic conditions, a Change of Law, or an event or circumstance that results in that Party’s not having sufficient funds to comply with an obligation to pay money) and any consequences of that event or circumstance. Notwithstanding anything to the contrary in this MSA:
    1. No liability: Neither Party shall be liable for any delay or failure to perform its Obligations pursuant to this MSA if such delay is due to Force Majeure.
    2. Suspension: If a delay or failure of a Party to perform its Obligations is caused or anticipated due to Force Majeure, the performance of that Party’s Obligations will be suspended.
    3. Termination: If a delay or failure by a Party to perform its Obligations due to Force Majeure exceeds 60 days, either Party may immediately terminate the MSA on providing notice in writing to the other Party.
    4. Refund: If this MSA is terminated for a Force Majeure Event, Company shall refund moneys previously paid by Client pursuant to this MSA for goods or services not provided by Company to Client.
  15. Dispute Resolution:
    1. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration hearing shall take place at a location and a time determined by the Company in its sole discretion before a single arbitrator. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
    2. The Parties agree that:
      1. they have a general Obligation to co-operate to achieve the objectives of the MSA; and
      2. in the event of a breakdown of their relationship, they will use their best endeavors to resolve their differences and will proceed to arbitration prior to having recourse to litigation or terminating the MSA.
  16. General Provisions:
    1. Waiver
      1. No right under this MSA will be deemed to be waived by the Company except by notice in writing.
      2. A waiver by the Company will not prejudice its rights in respect of any subsequent breach of this MSA by the Client.
      3. Any failure by Company to enforce any clause of this MSA, or any forbearance, delay or indulgence granted by Company to Client, will not be construed as a waiver of Company’s rights under this MSA.
    2. Assignment: Neither the benefits nor burdens of this MSA may be assigned, transferred, licensed or sub-licensed by Client without the prior written consent of Company. Company may assign the benefits or burdens of this MSA to a Related Body Corporate or other entity under common ownership with Company or the purchaser of all or a substantial part of Company’s business. For the avoidance of doubt a change in ownership or control of the Client shall be deemed to constitute an assignment.
    3. Customer Warranties: Client represents and warrants that (i) Client has the legal right and authority to place and use Client equipment, (ii) Client is duly organized and has the authority to enter into this MSA and to perform its obligations hereunder, (iii) the person signing the MSA and any other documents on behalf of Client is authorized to do so, and upon Client signing this MSA, it is legally binding on Client, (iv) Client’s and Client’s end users’ use of the Services and of Client equipment does not, as of the effective date of this MSA, and will not, during the Term, violate applicable laws or regulations or infringe the rights of any third-parties, and (v) all information provided to Company is accurate and complete.
    4. Severability: This MSA shall, so far as possible, be interpreted and construed so as not to be invalid, illegal or unenforceable in any respect, but if a provision, on its true interpretation or construction is held to be illegal, invalid or unenforceable:
      1. that provision shall, so far as possible, be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation; or
      2. if the provision or part of it cannot effectively be read down, that provision or part of it shall be deemed to be void and severable and the remaining provisions of this MSA shall not in any way be affected or impaired and shall continue notwithstanding that illegality, invalidity or enforceability.
    5. Entire agreement: This MSA constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
  17. Limitation of Liability:
    1. The Client agrees that the Company shall not be liable to the Client, or to any third party, for any indirect, incidental, special, punitive, or consequential damages, whether arising from breach of contract, tort, equity, or other common law or statutory theory of recovery, including, but not limited to: loss of profits, revenue or data; or use of data. The Client agrees that the maximum liability of Company under this MSA shall be the total cumulative amount paid to Company over the twelve (12) month period prior to the event giving rise to any liability claim against Company. This Section shall not apply to fraud or intentional misconduct. This limitation of liability provision shall apply to Section 18 of this MSA.
    2. Notwithstanding any other provision of this MSA to the contrary, and for the avoidance of doubt, Client expressly accepts and acknowledges that Company and its employees, officers, and directors, are not liable to Client for any costs, expenses, loss, liability or damage of any kind, including but not limited to loss of profits, however arising from or in connection with:
      1. any delay in Company arriving at the Client’s Locations, as defined in the relevant SOW to repair any breakdown;
      2. any failure or inability to repair any breakdown;
      3. any inability of Client to access Technology Systems;
      4. any disruption or interference with the Business in connection with Services being carried out or provided;
      5. any Technology Systems being properly in the possession of Company;
      6. the Technology Systems failing to operate at any time or times during the Term; or
      7. any delay, failure, or error in the provision of Service due to any circumstance outside Company’s reasonable control, including without limitations, failure of any communications network or system, electronic power surges, overloads, failures or blackouts, including but not limited to any failure in internet, telephone or data connectivity, except to the extent that such costs, expenses, loss, liability or damage is caused by Company’s willful or negligent act or omission.
    3. No reliance on representations: Client warrants that it has not relied on any representation made by Company which has not been stated expressly in this MSA, or relied upon any descriptions, illustrations or specifications contained in any document including websites or publicity material produced or provided by Company.
  18. Indemnification. The Client agrees to indemnify, defend, and hold harmless the Company from any liabilities, losses, damages, claims, demands, or expenses, including reasonable attorney’s fees and disbursements, caused by their intentional or negligent actions or omissions in connection with this MSA, including those of their officers, directors, agents, contractors, servants, or employees.
  19. Insurance. The Parties shall maintain insurance coverage considered in accordance with industry standards as reasonably adequate to protect their assets and operations and is sufficient for material compliance with all requirements of law and this MSA and associated SOWs.
  20. Exclusivity: The Services under this MSA and associated SOWs shall be exclusive and during the term of this MSA the Client shall not hire, retain, or engage a third party to provide the same or similar services.

Last Updated: July 6, 2022