Master Services Agreement

WHEREAS, the undersigned referred to as “Customer” is contracting with Five Rivers IT, Inc. (FRIT) to provide IT services such as IT Consulting, Managed IT Services, Cybersecurity Services, Compliance Management Services, Staffing Services, Server hosting, Backup and Disaster Recovery, Third Party software and/or hosting subscription, hardware and software sales etc.; specific services will be memorialized in one or more Scope of Work(s) (SOW); the term “SOW” as used herein shall also refer to a “Quote” , and these terms may be utilized interchangeably, including in discussions with Customer.

NOW, THEREFORE, in consideration of the mutual promises and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Five Rivers IT and Customer agree as follows, effective date undersigned by the Customer:

Terms and Termination

• The term of this Agreement will continue until the later of (i) the expiration of all SOW(s) or (ii) either party’s termination of the Agreement (and all SOWs) for or without cause.
• Customer agrees to a twelve (12) month contract for any monthly recurring Services Provided, or Subscription Products sold by FRIT under this Agreement and under any SOW(s), unless a different duration is specifically identified in the SOW.
• At the end of the initial term or any auto-renewed term of a monthly recurring services/products agreement, the SOW term will auto-renew for contiguous terms equal to the initial term unless a written cancellation is submitted at least sixty (60) days before the then-current term of the SOW’s expiration.
• Third-party software and/or products are subject to, and Customer agrees to be bound by, such third-party terms of use and service. Copies of applicable third-party terms and conditions shall be provided by FRIT to the Customer upon the Customer’s request.
• Products implemented or used as part of the Services are subject to change during the course of the contract. Any substituted products will be of equal or better quality unless otherwise mutually agreed upon.
• If the Customer terminates any SOW without cause prior to its completion term, the Customer will be responsible for paying FRIT early termination charges for all services and products covered under such SOW being terminated, equal to the total amount due for the remaining term, plus all collection costs and attorneys’ fees incurred in the process, if any (“Termination for Convenience”).

Fees and Payment Terms

• Customer will be billed at the beginning of the month for the month in which the service(s) are rendered. All payments will be due by the fifteenth (15th) of the month.
• Customers are required to establish an electronic payment method either using the FRIT payment portal or their own electronic payment method.
• All customers whose monthly recurring invoice amount is below five thousand dollars ($5,000) must set up Autopay using FRIT’s payment portal.
• In the event the Customer has not made timely payment on a routine basis (more than five (5) business days past the due date for three consecutive months or more than five times in a year), the Customer may be required, at FRIT’s sole discretion, to set up Autopay via ACH in the FRIT payment portal. FRIT may also require the Customer to switch to prepaid payment terms, regardless of the agreed Payment Terms in the MSA or SOW.
• One-time projects or products sold will be billed upon order confirmation and will be due immediately unless an alternate payment schedule is agreed upon in the SOW.
• The initial fees indicated in an SOW for recurring services are the minimum monthly fees (“MMF”) charged during the term of the engagement between the Customer and FRIT. Customer agrees that the amounts paid under the SOW(s) will not drop below the MMF regardless of the number of users or devices to which the services are applied, unless FRIT agrees in writing to a reduction. If the Customer requests additional users or devices to be managed by FRIT, FRIT will increase subsequent invoices proportionally. Customer further acknowledges that for certain products, quantities may only be adjusted upward during the SOW term, and the MMF will be adjusted to the highest quantity level during the term.
• Customer will be responsible for all applicable taxes and regulatory fees.
• Customer will be responsible for a late payment fee at the rate of one percent (1%) per month (or the maximum rate allowed by law) on all past-due balances, plus any reasonable costs incurred in collection efforts, including reasonable attorneys’ fees. Such fees will be due and payable immediately upon FRIT’s written notice or request.
• If no payment is received by the end of the applicable month of service, FRIT reserves the right to discontinue services immediately. Services will be restored only upon full payment, including any applicable late fees.
• If no payment is received within sixty (60) days from the invoice date, FRIT reserves the right to permanently discontinue services and discard any records and data in its possession. Restoration of services will be subject to a reactivation fee, determined at the time of restoration. If services are suspended due to nonpayment and later restored upon the Customer bringing the account current, the Customer will be required to set up Autopay via ACH in the FRIT payment portal. Customer will also be responsible for reasonable attorneys’ fees and collection costs incurred by FRIT.
• Customer acknowledges that certain third-party tools and/or licenses are subject to third-party vendor or manufacturer pricing not controlled by FRIT. FRIT reserves the right, but not the obligation, to pass increased costs on to the Customer with thirty (30) days’ written notice. Customer further acknowledges that certain licenses (e.g., Microsoft 365) are non-cancellable and non-refundable for the duration of the license term and agrees to remain responsible for all license fees for the full term, even if such term extends beyond the termination or expiration of this Agreement.
• Pricing is subject to an annual increase from the Effective Date of each SOW, not to exceed the greater of five percent (5%) or the published twelve-month Consumer Price Index (CPI), all items, as measured in the month prior to renewal.

Implementation

• Advice; Instructions. FRIT may offer Customer specific advice and directions related to the Services to improve operational reliability or cybersecurity posture (“Advice”). Customer is strongly advised to promptly follow FRIT’s Advice which, depending on the situation, may require Customer to make additional purchases or investments in the Environment at Customer’s sole cost. FRIT is not responsible for any problems or issues, including but not limited to downtime or security-related issues, caused by or related to Customer’s failure to follow its Advice. If, in FRIT’s reasonable discretion, Customer’s failure to follow FRIT’s Advice makes part or all the Services economically or technically unreasonable or impracticable to provide or facilitate, then FRIT may provide Customer 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 FRIT may, at FRIT’s discretion, terminate the applicable Services (constituting for cause termination) by providing notice of termination to Customer or, alternatively, FRIT may adjust the scope of the SOW to exclude any impacted or affected portion of the Environment. Unless specifically and expressly stated in writing by FRIT (such as in an SOW), any services required to remediate issues caused by Customer’s failure to follow FRIT’s Advice, or Customer’s unauthorized modification of the Environment, as well as any services required to bring the Environment up to or maintain the Minimum Requirements (defined below), are out-of-scope.
• Co-Management. In co-managed situations where Customer has designated other vendors or internal personnel with similar access rights to FRIT(“Co-Managed Providers”), to deliver services that overlap or conflict with the services provided by FRIT, FRIT will endeavor to implement the services in an efficient and effective manner; however (i) FRIT will not be responsible for the acts or omissions of Co-Managed Providers, or the remediation of any problems, errors, or downtime associated with those acts or omissions, and (ii) in the event that a Co-Managed Provider’s determination of an issue differs from FRIT’s position on a service-related matter, FRIT will yield to the Co-Managed Provider’s determination and bring that situation to Customer’s Authorized contact’s attention. In Co-Managed situations, Customer hereby agrees to hold FRIT harmless from and against all Environment-related issues, errors, downtime, exploitations, and/or vulnerabilities (collectively, “Environment Issues”) as well as any damages, expenses, costs, fees, charges, occurrences, obligations, claims, and causes of action arising from Environment Issues, where the Environment Issues cannot directly and unambiguously be traced back to any wrongdoing by FRIT.
• Procurement. For customers subscribing to managed services that include unlimited hardware support (procurement, upgrades, additions etc.), if the customer purchases hardware from 3rd party, the customer must pay FRIT for Time & Material spent on procurement, configuration and installation support of such hardware in addition to the managed services fee.
• Third Party Support. If, in FRIT’s discretion, a hardware or software issue requires vendor or OEM support, we may contact the vendor or OEM (as applicable) on your behalf and invoice you for all fees and costs involved in that process (“OEM Fees”). If OEM Fees are anticipated in advance, FRIT will endeavor to obtain your permission before incurring such expenses on your behalf unless exigent circumstances require FRIT to act otherwise.
• Authorized Contact(s). FRIT will be entitled to rely on any directions or consent provided by Customer’s personnel or representatives whom Customer designates to provide such directions or consent (“Authorized Contact”). If no Authorized Contact is identified in a SOW or if a previously identified Authorized Contact is no longer available to FRIT, then the Authorized Contact will be the signatory to this Agreement or an SOW. FRIT will not be responsible for any causes of action due to Customer’s failure to provide timely and/or accurate information in response to FRIT’s request for the same.
• Scope of Work exclusions. Customer acknowledges that anything not explicitly mentioned in an SOW is out of Scope and Customer will be liable for paying for such work. This includes, but not limited to, work performed outside of maintenance tasks defined in said SOW, projects, planned tasks requiring more than five hours of work, assisting third parties, incidents caused by third parties, cyber incident response etc.
• Minimum Requirements. Everything in Customer’s Environment must be genuine and licensed, including all hardware and software. If FRIT requests proof of authenticity and/or licensing, Customer must provide FRIT with such proof. If FRIT requires certain minimum hardware or software requirements (“Minimum Requirements”) Customer agrees to implement and maintain those Minimum Requirements as a material requirement under this Agreement.
• Response. In no event will FRIT be responsible for delays in responses or provision of services during (i) those periods of time covered under the Transition Exception (defined below), or (ii) periods of delay caused by Scheduled Down Time, Customer Side Downtime, Vendor Side Downtime (all defined below) or (iii) periods in which FRIT is required to suspend the services to protect the security or integrity of the Customer’s environment or its equipment or network or (iv) delays caused by a Force Majeure event.
1. Scheduled Downtime. For the purposes of this Agreement, Scheduled Downtime means the period of downtime during which FRIT performs scheduled maintenance or adjustments to the Customer’s Environment or to FRIT’s network or systems. Scheduled Downtime will generally not occur Monday through Friday between the hours of 9:00 AM and 5:00 PM (local time in your jurisdiction) without your authorization or unless exigent circumstances require FRIT to perform emergency maintenance or related activities. FRIT will use best efforts to provide Customer with at least twenty-four (24) hours of notice prior to Scheduled Downtime.
2. Customer-Side Downtime. FRIT will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by Customer’s actions or omissions, or by Customer’s Co-Managed Provider’s acts or omissions (“Customer-Side Downtime”). Customer-Side Downtime includes, but is not limited to, any period during which FRIT requires Customer’s participation, or requires information, directions, or authorization from Customer but cannot reach your Authorized Contact(s).
3. Vendor-Side Downtime. FRIT will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services or any expenses or costs to the extent that such delays, deficiencies, costs, or expenses are caused by Third Party Providers, third party licensors, or “upstream” service or product vendors.
4. Transition Exception. Customer acknowledges and agrees that for the first fifteen (15) days following the commencement date of any Service, as well as the entirety of any period during which FRIT is performing off-boarding-related services (e.g., assisting Customer in the transition of the Services to another provider, terminating a service, etc.), any response time commitments previously provided to Customer will not apply to FRIT, and it is understood that there may be unanticipated downtime or delays related to those activities (the “Transition Exception”).

Confidentiality

• In connection with fulfilling their obligations pursuant to the terms of this Agreement, the parties may obtain information of the other party that is confidential or proprietary in nature (“Confidential Information”). Such Confidential Information shall include, without limitation: (i) any processes, methods, ideas, techniques, drawings, prints, designs, ideas, sketches, and other materials of either party; (ii) information concerning research, development, customer lists, employees, third party relationships, and marketing plans of either party; (iii) any other information or material that is proprietary to either party, whether marked as such at the time of disclosure; and (iv) any other information that is marked confidential, restricted, proprietary or similar designation.
• The parties agree: (i) to take all reasonable steps necessary to maintain the confidentiality of such Confidential Information and not to disclose such Confidential Information without the prior written consent of the other party, but in no event less than the standards used to protect its own Confidential Information; and (ii) to not use or copy any Confidential Information for any purpose other than in direct furtherance of the obligations of this Agreement.
• Notwithstanding the foregoing, each party’s obligations to keep confidential the Confidential Information of the other shall not apply to information: (i) that is already known to the other party without an obligation of confidentiality; (ii) becomes publicly available through no fault of the other party; (iii) is received from a third party that is under no obligation of confidentiality with respect to the Confidential Information; (iv) that was independently developed without exposure to or use of the Confidential Information; or (v) is required to be disclosed by law, provided that the receiving party gives prompt prior notice of such required disclosure to the disclosing party, to enable the disclosing party to seek a protective order or otherwise prevent disclosure of its Confidential Information through legal means.
• The parties agree that the disclosure of its Confidential Information cannot adequately by remedied by money damages. Accordingly, the parties hereby consent to the issuance of a equitable remedies, including, but not limited to, injunction to prevent the disclosure of its Confidential Information, without the requirement of posting bond or other security.

Disclaimer

EXCEPT AS SPECIFICALLY SET FORTH HEREIN, FRIT DOES NOT MAKE ANY, AND SPECIFICALLY DISCLAIMS ALL, EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR GUARANTEES REGARDING THE SERVICES DESCRIBED HEREIN OR IN ANY STATEMENT OF WORK, AND FRIT DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY THIRD-PARTY CONTENT, HOSTED SERVICES, HARDWARE, SOFTWARE, PROFESSIONAL SERVICES AND DOCUMENTATION USED AND/OR OWNED BY OR PROVIDED BY FRIT ARE PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, FRIT, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY,OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, FRIT PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE PROVIDED SOFTWARE WILL MEET THE CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:

1. THIS PARAGRAPH LIMITS THE LIABILITIES ARISING FROM THE SERVICES AND IS A BARGAINED FOR AND MATERIAL PART OF FRIT’S BUSINESS RELATIONSHIP WITH CUSTOMER. CUSTOMER ACKNOWLEDGES AND AGREES THAT FRIT WOULD NOT PROVIDE SERVICES OR ENTER INTO ANY SOW UNLESS FRIT COULD RELY ON THE LIMITATIONS DESCRIBED IN THIS PARAGRAPH. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, SUCH AS LOST REVENUE, LOSS OF PROFITS (EXCEPT FOR FEES DUE AND OWING TO FRIT), SAVINGS, OR OTHER INDIRECT OR CONTINGENT EVENT-BASED ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, THIS MSA, ANY SOW, OR FOR ANY BREACH HEREOF OR FOR ANY DAMAGES CAUSED BY ANY DELAY IN FURNISHING SERVICES UNDER THIS AGREEMENT OR ANY SOW, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; HOWEVER, AMOUNTS CUSTOMER OWES TO FRIT UNDER ANY SOW, REASONABLE ATTORNEYS’ FEES AWARDED TO A PREVAILING PARTY, AND ANY AMOUNTS DUE AND PAYABLE PURSUANT TO THE PLACEMENT FEE PROVISION OF THIS MSA SHALL NOT BE LIMITED BY THE FOREGOING LIMITATION. EXCEPT FOR THE FOREGOING EXCEPTIONS, A RESPONSIBLE PARTY’S (“RESPONSIBLE PARTY’S”) AGGREGATE LIABILITY TO THE OTHER PARTY (“AGGRIEVED PARTY”) FOR DAMAGES FROM ANY AND ALL CLAIMS OR CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF SUCH ACTION(S), THAT ARISE FROM OR RELATE TO THIS MSA OR ANY SOW (COLLECTIVELY, “CLAIMS”), WHETHER IN CONTRACT, TORT, INDEMNIFICATION, OR NEGLIGENCE, SHALL BE LIMITED SOLELY TO THE AMOUNT OF THE AGGRIEVED PARTY’S ACTUAL AND DIRECT DAMAGES, NOT TO EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER (EXCLUDING HARD COSTS FOR LICENSES, HARDWARE, MATERIALS, ETC.) TO FRIT FOR THE SPECIFIC SERVICE UPON WHICH THE APPLICABLE CLAIM(S) IS/ARE BASED DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE ON WHICH THE CAUSE OF ACTION ACCRUED, OR THE AMOUNTS ACTUALLY PAID AND COVERED PERTAINING TO AN ACCEPTED CLAIM OF A RESPONSIBLE PARTY’S INSURANCE POLICY, WHICHEVER IS GREATER. THE PARTIES AGREE THAT ONLY ONE OF THE FOREGOING REMEDIES MAY BE SELECTED BY AN AGGRIEVED PARTY AND ONCE SELECTED, THE SELECTED REMEDY SHALL BE THE SOLE REMEDY AVAILABLE TO THE AGGRIEVED PARTY TO THE EXCLUSION OF ALL OTHER REMEDIES. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE REMEDIES LISTED IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE; HOWEVER, THE LIMITATIONS SHALL NOT APPLY TO THE EXTENT THAT SUCH LIMITATIONS ARE PROHIBITED UNDER APPLICABLE LAW, OR THE EXTENT THAT THE CLAIMS ARE CAUSED BY A RESPONSIBLE PARTY’S GROSS NEGLIGENCE OR INTENTIONAL OR WILLFUL MISCONDUCT, EITHER PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS, IN WHICH CASE THE RESPONSIBLE PARTY’S INSURANCE CARRIER’S LIMIT FOR ACCEPTED CLAIMS SHALL BE THE LIMITATION OF LIABILITY. A RESPONSIBLE PARTY’S LIABILITY OBLIGATION SHALL BE REDUCED TO THE EXTENT A CLAIM IS CAUSED BY OR THE RESULT OF THE AGGRIEVED PARTY’S WILLFUL OR INTENTIONAL MISCONDUCT, GROSS NEGLIGENCE, OR TO THE EXTENT THAT THE AGGRIEVED PARTY FAILED TO REASONABLY MITIGATE (OR ATTEMPT TO MITIGATE, AS APPLICABLE) THE CLAIMS. UNDER NO CIRCUMSTANCES SHALL FRIT HAVE ANY LIABILITY FOR ANY CLAIMS OR CAUSES OF ACTION ARISING FROM OR RELATED TO OUT OF SCOPE SERVICES. FRIT SHALL NOT POSSESS ANY LIABILITY FOR DAMAGES WHICH WERE CAUSED OR WOULD HAVE BEEN PREVENTED BY PRODUCTS OR SERVICES OFFERED TO CUSTOMER FOR WHICH CUSTOMER DECLINED OR DELAYED OR FOR THE INTENTIONAL CRIMINAL ACTS OF THIRD PARTIES. IF CUSTOMER REQUESTS FRIT RELEASE THE CREDENTIALS PERTAINING TO CUSTOMER’S ENVIRONMENT, WHETHER DUE TO TERMINATION OF THIS AGREEMENT, AS A COMPONENT OF TRANSITION SERVICES, OR OTHERWISE, FRIT SHALL POSSESS NO LIABILITY WHATSOEVER FOR DAMAGES, ISSUES, INCIDENTS, OR OTHER HARM SUFFERED BY CUSTOMER PERTAINING TO ITS ENVIRONMENT UPON FRIT’S RELEASE OF THE CREDENTIALS.
2. CUSTOMER EXPRESSLY AGREES THAT USE OF FRIT’S SERVICES IS AT CUSTOMER'S SOLE RISK. NEITHER FRIT, ITS EMPLOYEES, AFFILIATES, AGENTS, THIRD PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSERS OR THE LIKE, WARRANT THAT SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DOES FRIT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES UNDER ANY SOW. FRIT IS NOT LIABLE FOR MALFUNCTION OR UNDERPERFORMANCE OF THIRD PARTY SERVICES AND PRODUCTS SOLD BY FRIT. NO CLAIM, SUIT, OR ACTION REGARDLESS OF FORM, ARISING FROM OR RELATING TO FRIT’S ACTS OR OMISSIONS IN THE PERFORMANCE OF THIS AGREEMENT MAY BE BROUGHT OR ASSERTED MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
3. LEGACY DEVICES. AS USED HEREIN, “LEGACY DEVICE” MEANS A PIECE OF EQUIPMENT, A DEVICE, HARDWARE, OR SOFTWARE THAT IS OUTDATED, OBSOLETE, INCOMPATIBLE WITH INDUSTRY STANDARDS AND/OR NO LONGER IS SUPPORTED BY THE ORIGINAL VENDOR OR MANUFACTURER. LEGACY DEVICES MAY CAUSE VULNERABILITIES IN CUSTOMER’S NETWORK, OR THEY MAY FAIL FROM TIME TO TIME OR CAUSE OTHER PARTS OR PROCESSES OF THE CUSTOMER’S ENVIRONMENT TO OPERATE IMPROPERLY OR FAIL. NEITHER FRIT NOR ANY THIRD PARTY PROVIDER SHALL BE RESPONSIBLE FOR THE REMEDIATION OF ISSUES ARISING FROM OR RELATED TO THE EXISTENCE OR USE OF LEGACY DEVICES IN THE CUSTOMER’S ENVIRONMENT, AND FRIT SHALL BE HELD HARMLESS FROM AND AGAINST ALL ISSUES, CLAIMS, AND CAUSES OF ACTION ARISING FROM OR RELATED TO THE EXISTENCE OR USE OF LEGACY DEVICES IN THE CUSTOMER’S ENVIRONMENT.

Indemnification

1. Indemnification. Each party agrees to indemnify, defend and hold harmless the other party, its subcontractors, parent, affiliates, and employees of any of the foregoing from and against any and all claims, suits, actions, losses, liabilities, damages, costs and expenses (including, but not limited to, costs of investigation and reasonable attorneys' fees) arising out of or in connection with: (i) the breach of any warranty or representation, undertaking or obligation on the part of the indemnifying party under this agreement; or (ii) arising out of the indemnifying parties actions under this Agreement.
2. Procedures. The parties shall provide the indemnification provided in this section provided that the indemnified party provides the indemnifying party with: (i) prompt written notice of any claim covered under this section (“Covered Claim”), (ii) control over the defense and settlement of such Covered Claim using counsel reasonably acceptable to the indemnified party, and (iii) proper and full information and assistance to settle or defend any such Covered Claim. The indemnified party shall be able to participate in the defense of the Covered Claim with counsel of its choice at its own expense, and the indemnifying party shall not enter into any settlement without the indemnified party’s written consent, which consent shall not be unreasonably withheld.

Arbitration

Except for undisputed collections actions to recover fees due to FRIT (“Collections”) or any amounts that qualify for small claims court in FRIT’s local jurisdiction, all disputes, claims or controversies arising from or related to these terms and conditions, including the determination of the scope or applicability to arbitrate, shall be settled by arbitration before one arbitrator who is mutually agreed upon by the parties. There is no jury involved in arbitration, and by agreeing to arbitrate you are agreeing to waive any right you may have to a trail by jury. The arbitration shall be administered and conducted by the American Arbitration Association (“AAA”) pursuant to the AAA’s arbitration rules for commercial disputes (“Rules”). In the event of any inconsistency between the Rules and the procedures set forth in this paragraph, the procedures set forth in this paragraph shall control. The arbitrator will be experienced in commercial contracts and information technology transactions. If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the arbitration venue shall select the arbitrator. The arbitration shall take place in our office unless we agree to a different venue. The arbitrator will determine the scope of discovery; however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. Initially, the cost of arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.

Miscellaneous

• Placement Fee. Customer agrees that during all times during which FRIT is providing services to Customer and for twelve (12) months thereafter, Customer will pay FRIT the Placement Fee (defined below) for, individually or in conjunction with others, hiring or retaining, directly or indirectly, any of FRIT’s employees or subcontractors (“FRIT Resource”) in order to compensate FRIT for the internal and external costs of recruitment, interviewing, placement expenses, training, certification and other efforts of FRIT relative to such person (“Placement Fee”). Placement Fee means one hundred percent (100%) of that employee or subcontractor’s annualized compensation with FRIT (including any commissions or bonuses) which shall be due and payable fifteen (15) days following Customer’s hiring of a FRIT Resource. This provision shall not prevent Customer from hiring a FRIT Resource, who has not had contact with Customer throughout the course of Customer’s engagement with FRIT, and who responds to a general and publicly available job posting not specifically directed to a FRIT Resource.
• Resale of Hardware, Software, Hosting etc. Customer understands that they are purchasing 3rd party Hardware, Software, Hosting or other Technology products & services from FRIT in its capacity as a reseller. All warranties, explicitly stated or implied, are provided by such 3rd parties and Customer will adhere to provisions of End User License Agreement of that 3rd party provider.
• Virtual Security. Customer understands and agrees that no security solution is 100% effective or flawless, and any security paradigm may be circumvented and/or rendered ineffective by certain malware, such as ransomware or rootkits that were unknown to the malware prevention industry at the time of infection, and/or which are downloaded or installed into the Environment. FRIT does not warrant or guarantee that any security related product or solution implemented or facilitated by FRIT will be capable of detecting, avoiding, quarantining, or removing all malicious code, spyware, malware, or the like, or that any data deleted, corrupted, or encrypted by any of the foregoing (Impacted Data) will be recoverable.
• Critical Vendor Status. If Customer declares bankruptcy, or there is an assignment for the benefit of creditors, then Customer agrees that FRIT is a “critical vendor” and Customer will take all steps necessary to have FRIT designated as a “critical vendor” entitled to payment and all other statuses and priorities afforded to any of Customer’s other critical vendors.
• Updates. Patches and updates to hardware and software (Updates) are created and distributed by Third Party Providers. FRIT does not warrant or guarantee that any Update will perform properly, and FRIT will not be responsible for any downtime or losses arising from or related to the installation, use, or inability to use any Update.
• Force Majeure. Neither party will be liable to the other party for any loss, damages or expenses or will be considered in breach of this Agreement due to any delay or failure to perform all or any part of its respective obligations under this Agreement, except for the failure to meet any payment obligation, if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond its reasonable control and without its negligence. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, acts if terrorism, acts of civil or regulatory authority, changes in any law or regulation, earthquake, fire, flood, tornado, storm or other like event, explosions, disruption or outage of computers or communications, or the Internet, equipment failure, power or other utility failure, epidemics or pandemics, or other cause, whether similar or dissimilar to any of the foregoing.
• Governing Law. These terms and conditions will be governed by and construed according to the laws of the state of New Jersey. Customer irrevocably consents to the exclusive jurisdiction and venue of Bergen County, New Jersey, for all non-arbitrable claims and causes of action that arise from or relate to these terms and conditions or FRIT’s performance.
• Independent Contractor. Each party is an independent contractor of the other and neither is an employee, partner, or joint venturer of the other. FRIT may subcontract part or all of the Services to one or more third parties, provided, however, that FRIT shall be responsible for all such work performed by a FRIT designated subcontractor as if FRIT performed such work itself. Notwithstanding the foregoing, FRIT shall not delegate or subcontract any Services that are expressly designated as being non-delegable by Customer in an SOW.
• Collections. If FRIT is required to send Customer’s account to collections or to start any collections related action to recover undisputed fees, FRIT will be entitled to recover all costs and fees incurred in the collections process, including but not limited to attorneys’ fees and costs.
• Assignment. This Agreement and any SOW(s) entered into hereunder may be assigned or transferred by either Party upon written notice to the non-assigning Party. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns; provided, however, that the assignee expressly assumes the other Party’s obligations hereunder.
• No Third-Party Beneficiaries. The parties have entered into this Agreement solely for their own benefit and intend no third party to be able to rely upon or enforce any part of this Agreement.
• Cyber Insurance. Customer shall, at Customer’s expense, maintain cyber insurance covering Customer’s system with financially sound and reputable insurance provider.
• Merger. These terms and conditions, together with SOWs are incorporated by the parties into these terms and conditions, sets forth the entire understanding of the parties and supersedes prior agreements related to the services or products. Any document that is not incorporated under these terms and conditions shall act only to provide illustrations or descriptions of services to be provided and shall not act to modify these terms and conditions or provide binding contractual language between the parties.
• No Waiver. The failure of either party to enforce or insist upon compliance with any of the terms and conditions herein, the temporary or recurring waiver of any term or condition hereof, or the granting of an extension of the time for performance, shall not constitute an agreement to waive such terms with respect to any other occurrences.
• Severability. If any provision herein is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, illegibility, or unenforceability so that the remainder of that provision and all remaining provisions herein shall be valid and enforceable to the fullest extent permitted by applicable law. Such unenforceability shall not affect any other provision of these terms and conditions and the terms and conditions shall be construed as if such unenforceable provision or provisions had never been included.
• Survival. The provisions contained in these terms and conditions that by their context are intended to survive termination or expiration of the relationship between the parties shall survive.
• Execution in Counterparts. The parties intend to sign, accept and/or deliver any SOW, these terms and conditions, or any SOW or amendment in any number of counterparts, each of which will be deemed an original and all of which, when taken together, will be deemed to be one agreement. Each party may sign, accept, and/or deliver these terms and conditions, or any SOW(s) electronically.
• Order of Precedence. In the event of any conflict between any SOW and these terms and conditions, the SOW shall control except as it relates to limitation of liability, indemnification, and/or confidentiality.

FRIT PROVIDES THE SERVICES SET FORTH HEREIN SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY SIGNING THIS MASTER SERVICES AGREEMENT THE CUSTOMER (A) ACCEPTS THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) CUSTOMER IS LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND THE CUSTOMER TO ITS TERMS; AND (D) THIS MASTER SERVICES AGREEMENT REPLACES ANY EXISTING MASTER SERVICES AGREEMENT.