MSA – On Demand IT Support

MASTER SERVICE AGREEMENT
ON DEMAND IT SUPPORT

1. Terms. These Terms and Conditions govern the services that are outlined on our Purchase Order or Quote. Client understands that it is contracting with Alcala Consulting, Inc. (“ACI”) for one-time services that appear on each Purchase Order or Quote. The services offered will be reactive in nature. That is services will only be offered to Client when the Client contacts ACI and ACI issues a Purchase Order or Quote for the services sought by Client. It is understood that this Agreement is not a Managed Services Agreement and ACI is not being contracted for monitoring, backing up, or installing updates to the Client’s IT system.

2. Third Party Products. Product warranties for third party products, if any, are provided by the manufacturers thereof and not by ACI. ACI’s sole obligation is to act on behalf of Client to assist in the satisfaction of any such warranty.

3. Software Hardware & Security. Client understands and agrees that data loss or network failures may occur, whether or not foreseeable, if the Client fails to maintain proper security for its computer and information system including software and hardware updates. Client therefore warrants that it will follow software and hardware updates and maintain specific security standards, policies, and procedures.

4. Cyber Terrorism. In no event, including the negligent act or omission on its part, shall ACI, whether under this Purchase Order or otherwise, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses including (without limitation) if and to the extent that they might otherwise not constitute indirect or consequential losses or expenses, loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable if such loss was the result or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, civil commotion or assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things. Cyber Terrorism shall mean an act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronic ally that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat there from.

5. Telemarketing & Unsolicited Emails. In no event, including the negligent act or omission on its part, shall ACI, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses including (without limitation) if and to the extent that they might otherwise not constitute indirect or consequential losses or expenses, loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable if the Client’s data is breached because of the distribution of unsolicited email, direct mail, facsimiles, telemarketing or because of the collection of information by means of electronic “spiders”, “spybots”, “spyware”, wiretapping, bugging, video cameras or identification tags.

6. Limitations of Liability. EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL ACI BE LIABLE TO CLIENT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR FOR ANY AMOUNT IN EXCESS OF THE LICENSE FEE OR FOR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES, EXCEPT WITH RESPECT TO INDEMNITIES ARISING OUT OF IP CLAIMS, UNDER NO CIRCUMSTANCES, SHALL MSP’S AGGREGATE LIABILITY ARISING FROM OR OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE FEES PAID UNDER THIS AGREEMENT.

7. Disclaimers. The express remedies set forth in these Terms and Conditions will constitute Client’s exclusive remedies, and ACI’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (b) that the Services were performed improperly.
ACI shall not be responsible for impairments to the Services caused by acts within the control of Client or its employees, agents, contractors, suppliers or licenses, the interoperability of Client applications, or other cause reasonably within Client’s control and not reasonably related to services provided under this Agreement.
EXCEPT FOR THE WARRANTIES MADE BY ACI IN SECTION 10, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CLIENT, THE SERVICES AND DELIVERABLES ARE PROVIDED STRICTLY “AS-IS.” ACI DOES NOT MAKE ANY ADDITIONAL WARRANTIES, EXPRESSED, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE DELIVERABLES OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT.
ACI DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET ANY CLIENT REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CLIENT MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO CLIENT, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.
No statement by any ACI employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify this Agreement in any way whatsoever.

8. Agency: ACI and Client agree that this Agreement is not intended to create any agency relationships of any kind; and both agree not to contract any obligations in the name of the other party and not to use each other’s credit in conducting any activities under this Agreement.
9. Amendment: This Agreement constitutes the entire agreement between the parties, and supersedes all prior writings or oral agreements. This Agreement may be amended only by writing clearly setting forth the amendments and signed by the party against whom enforcement is sought.

10. Mutual Indemnification: ACI and Client agrees to indemnify and hold each other harmless from any and all claims, losses, damages, liabilities, judgments, or settlements, including reasonable attorney’s fees, costs, and other expenses incurred as a result of any activities conducted by the other party. ACI and Client will promptly notify each other upon receipt of any claim or legal action arising out of activities conducted pursuant to this Agreement. The rights and responsibilities established in this paragraph shall survive indefinitely the termination of this Agreement.

11. Force Majeure. With the exception of Client payment for service rendered, neither party shall be responsible for any failure to perform nor delay caused where such failure or delay is due to circumstances reasonably beyond the party’s control. This includes fire, flood, earthquake, volcanic eruption, explosion, lightening, wind, hail, tidal wave, landslide, act of God or any other physical event.