Last Updated: June 20, 2018
By executing a statement of work or accepting any quote (each referred to as “SOW”) for the purchase of any Managed Services (defined herein) from Integris Technology Group, LLC, a Kansas limited liability company (“ITG”), including any subsequent order for additional Managed Services, you, the customer (“Customer”) accepting the SOW, expressly agrees to be bound by the terms and conditions of this Master Services Agreement (“MSA”). Each SOW is subject to ITG’s acceptance and may be accepted or rejected by ITG in its sole discretion. Further, this MSA and any SOW that subsequently refers to this MSA are intended to collectively constitute one agreement (“Agreement”). It is further understood that ITG and Customer have entered into that certain Business Associate Agreement to ensure that ITG and Customer are, to the extent applicable, in compliance with their respective obligations under the Health Insurance Portability and Accountability Act of 1996, Health Information Technology for Economic and Clinical Health Act of 2009, and all pertinent regulations issued by the Department of Health and Human Services.
- Managed Services. If Customer purchases managed services (“Managed Services”), ITG will provide the scope of services described on the SOW as supplemented by these terms and conditions. The Managed Services will be performed for Customer’s computer network identified on the SOW (“Network”). Customer acknowledges that its Network is under its own control at all times and that the Managed Services do not include physical security or safety of the Network from casualty loss, physical intrusion, theft, vandalism, consequences arising from the failure to observe ITG or vendor-prescribed operating procedures and protocols, or abuse or neglect by Customer or its employees. Changes in the scope of Managed Services requested by Customer, if provided, are subject to price adjustments by ITG and will be charged at ITG’s then current pricing.
- IT Equipment.
(a) Definition. The term "IT Equipment" includes, but is not limited to, hardware, software, subscriptions or other computer or office equipment, which is the subject of the SOW and whether it is Customer’s existing IT Equipment or “Purchased IT Equipment.”
(b) Purchased IT Equipment. In the event Customer simply purchases IT Equipment from ITG (“Purchased IT Equipment”) without purchasing any of ITG’s services, ITG will sell the IT Equipment to Customer according to the pricing, terms and conditions of the applicable SOW as supplemented by the terms and conditions of this MSA.
- SOW’s. This Agreement may be supplemented by one or more SOW’s and each will be deemed to be incorporated by reference into this Agreement upon its acceptance by ITG. All additional Managed Services shall also be subject to the terms and conditions of this MSA, unless expressly superseded or waived by the language of its applicable SOW in accordance with Section 25. Each SOW will include, as applicable, (i) the description of the Managed Services and IT Equipment to be provided, (ii) the location(s) where the Managed Services and IT Equipment will be delivered, (iii) the one-time and recurring rates to be charged to Customer, and (iv) any special requirements or non-standard terms or conditions. Each SOW will only become binding upon counter-signature or other written or electronic confirmation by ITG indicating ITG’s acceptance of the SOW.
- Fees for Managed Services and IT Equipment. In addition to any other fees that may be charged by ITG under this Agreement, if Customer purchases additional Managed Services or IT Equipment, Customer shall pay to ITG all fees and chargeable expenses described on all additional SOW’s.
- Payment Terms. All fee payments for Managed Services will be remitted by Customer as directed by ITG without the necessity of invoice. Customer will not abate, set off, deduct or reduce any payment required to be paid hereunder for any reason without the prior written consent of ITG. All payments will be due and payable in accordance with the terms of the SOW’s. Payments will be deemed to be delinquent if funds are not remitted and in ITG's possession by no later than their applicable due date.
(a) To the extent that the Managed Services commence on any day other than the first day of a calendar month, and Customer is required to pay fees on a monthly basis, then Customer will pay only a prorated amount for such interim period based upon the actual number of days the Managed Services are provided during the applicable month.
(b) All sales, property, excise and other federal, state and local taxes (other than those taxes based upon ITG’s net income) will be added to the rates otherwise established hereunder and paid by Customer.
(c) All past due amounts will be subject to a late fee service charge equal to the greater of one and one-half percent (1½%) per month or the highest interest rate permitted by law.
(d) Customer shall pay all costs of collection and attorneys’ fees incurred by ITG if collection efforts are required by ITG and those efforts are successful. Any fees may, in ITG’s sole discretion, be invoiced in combination with any other concurrent services or products provided by ITG to Customer.
- Additional Provisions for Managed Services. In the event Customer purchases the Managed Services from ITG, the following shall apply:
(a) Customer’s Responsibilities. Customer shall provide, or shall permit ITG on behalf of Customer at Customer’s expense, to provide network environment characteristics as described below: (i) Onsite admission of ITG’s personnel and subcontractors to Customer’s premises during reasonable business hours; (ii) High-speed internet connectivity, with data transmission speeds of no less than 1.5 Mbps download and 512 Kbps upload; (iii) VPN tunnel allowing ITG access to Customer’s network, including access to data and other pertinent files stored on Customer’s Network; and, (iv) Onsite dedicated space suitable for running IT Equipment or any other hardware within manufacturers’ operating conditions as well as uninterrupted electrical supply; static grounding, heat, light, ventilation and electrical outlets suitable for Customer’s operation of its network consistent with industry standards. With respect to any software licenses which are not purchased outright by Customer but are otherwise provided by ITG pursuant to a SOW, Customer expressly acknowledges and agrees that Customer’s right to use any such software licenses provided by ITG will terminate immediately upon the expiration or earlier termination of this Agreement.
(b) ITG’s Responsibilities. ITG does not warrant that the Network will operate error free or uninterrupted. Customer specifically acknowledges that ITG shall not be responsible for any loss, cost, or damages suffered by or caused to Customer by reason of any casualty loss, external power or internet service provider’s disruptions or lost data resulting from the failure of the internal network, hardware or software systems. Customer acknowledges that ITG may at ITG’s sole discretion choose to render its services in person, via telephone or email support or remote support. ITG shall be acting in the capacity of independent contractor while performing the Managed Services and not as an agent or employee of Customer. ITG shall have sole discretion and control in assigning personnel to perform the Managed Services.
ITG will use commercially reasonable efforts to respond to Managed Services support requests generally within the time frame specified on the SOW from the time when an initial trouble ticket is submitted via email or telephone call/message, provided such notice is received during the covered support hours specified on the SOW. Services outside such time will be performed next business day. Emergency Services performed outside such time at the request of Customer will be subject to additional charges on a time, materials and transportation basis per the terms of the SOW under which the Emergency Services are performed. Customer understands that all system patching, updates, service pack deployment, and software upgrades will be scheduled as and when ITG determines is appropriate.
- Term – Renewal. In the event Customer purchases Managed Services from ITG, the term of this Agreement, with respect to the Managed Services will be for the time period specified on the SOW commencing on the Effective Date of the SOW, unless terminated earlier pursuant to Section 8. Upon expiration of the initial term indicated on the SOW, this Agreement will automatically renew as stated on the SOW unless either party provides the other party notice of its intent not to renew in accordance with the SOW. Provided, ITG shall have the right to increase the rates and fees charged by ITG or modify its billing policies (including the scope of standard services) for any renewal term.
(a) Termination by ITG. ITG may terminate this Agreement immediately, without notice, if any of the following events of default occur, provided that no such termination will entitle Customer to a refund of any portion of any earned fees charged by ITG hereunder and Customer will remain liable for all remaining fee payments which would otherwise be due under this Agreement for the remainder of the term of each SOW: (i) Customer fails to pay any amount due to ITG when due and payable; (ii) Customer is in breach of any nonmonetary term, condition or provision of this Agreement or any SOW with ITG, which breach, if capable of being cured, is not cured, within thirty (30) days after ITG gives Customer written notice of such breach; (iii) Customer fails to observe, keep or perform on three (3) or more occasions any provision(s) of this Agreement or any SOW with ITG, during any twelve (12) month period, regardless of whether Customer cures such defaults; (iv) Customer defaults under or otherwise fails to perform any obligation under any other then existing agreement or contract between the parties hereto; (v) Customer (a) terminates or suspends its business activities; (b) becomes insolvent, admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; (c) becomes subject to direct control of a trustee, receiver or similar authority; or (d) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes; (vi) Customer makes any misrepresentation or false statement to ITG as to its credit or financial standing in connection with the execution or the further performance of this Agreement or any SOW; or, (vii) in the ordinary business and affairs of Customer there occurs a material change which will increase ITG's credit risk regarding this Agreement.
(b) Termination by Customer. Customer may terminate this Agreement immediately, without notice, if any of the following events of default occur, provided that no such termination will entitle Customer to a refund of any portion of any earned fees: (i) ITG is in breach of any term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured, within thirty (30) days after Customer gives ITG written notice of such breach; or (ii) ITG (a) terminates or suspends its business activities; (b) becomes insolvent, admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; (c) becomes subject to direct control of a trustee, receiver or similar authority; or (d) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.
- Remedies. In the event of Customer’s default, ITG may exercise any one (1) or more of the following remedies, which remedies or any of them may be exercised by ITG without notice to Customer and without constituting an election of remedies by ITG under this Agreement: (a) ITG may institute litigation to collect all amounts due as of the date of such default, together with any sums that may accrue up to the date of trial; (b) ITG may institute litigation to specifically enforce the terms of this Agreement; (c) ITG may terminate this Agreement without notice; and, (d) ITG may pursue any other remedy now, or hereafter, existing in law or equity.
- Exclusive Warranty and Remedy. ITG warrants that (i) all Managed Services will be performed in a workmanlike manner consistent with industry standards; and (ii) all Purchased IT Equipment will be free of defects in materials and workmanship at the time of installation. Except as may be provided to the contrary on the applicable SOW, in the event ITG breaches this warranty, ITG’s sole obligation, and Customer’s exclusive remedy, will be ITG re-performing the services, making all necessary adjustments, repairs, reinstallations, software upgrades or replacement of parts which were defective at the time of their installation. There are no other express or implied warranties concerning any Managed Services or Purchased IT Equipment. ITG does not guaranty that the operation of any Purchased IT Equipment or third-party software will be uninterrupted or error-free.
- DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ITG MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE QUALITY OR EFFECTIVENESS OF THE MANAGED SERVICES PROVIDED BY ITG OR THE IT EQUIPMENT FURNISHED OR SOLD TO CUSTOMER INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE MANAGED SERVICES PERFORMED OR THE IT EQUIPMENT PROVIDED OR SOLD HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE. ITG'S LIABILITY UNDER THIS AGREEMENT FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, RESTITUTION FOR LOSS OF DATA OR COST OF RECOVERY, WILL NOT, IN ANY EVENT, EXCEED AN AMOUNT EQUAL TO THE CUMULATIVE FEES PAID BY CUSTOMER TO ITG FOR THE SERVICES RENDERED DURING THE PREVIOUS TWELVE (12) MONTH PERIOD PURSUANT TO THIS AGREEMENT.
- Confidential Information.
(a) Nondisclosure of Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party's business, operations, plans, customers, vendors, technology, services, products, object code, source code, and financial and other information proprietary to, or held in confidence by, the other party (“Confidential Information”). Confidential Information also includes all information recorded in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure or its nature, should reasonably be considered confidential. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, this Agreement or any SOW, nor disclose to any third party except as required by law or to a party’s attorneys, accountants and other advisors as reasonably necessary, any of the other party's Confidential Information. Each party also agrees that it will take reasonable precautions to protect the confidentiality of the other party's Confidential Information, with methods at least as stringent as it takes to protect its own Confidential Information.
(b) Exceptions. Information will not be deemed Confidential Information under this Section 13 if such information: (i) is known to the receiving party prior to receipt from the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source not subject to an obligation of confidentiality; (iii) becomes publicly known or otherwise ceases to be secret or confidential as a matter of law; or (iv) is independently developed by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that it gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.
(c) Employee Solicitation. Customer agrees that it will not solicit any employee of ITG for employment during the term of this Agreement and for a period of twenty-four (24) months thereafter.
- Non-assignment/Binding Agreement. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of ITG, which consent will not be unreasonably withheld. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Customer expressly acknowledges that, while not releasing ITG from its responsibilities hereunder, ITG may subcontract all or a portion of the Managed Services to third-party contractors which ITG believes possess the requisite training, licensure, certifications, personnel and resources. Should ITG believe it necessary to send people to Customer’s premises who are not its own employees, Customer shall be notified of these circumstances, including the details and identification of the individuals involved, and Customer and ITG shall make an appropriate agreement by which Customer is held harmless from any loss or damage such arrangement may cause Customer. Should this occur, part of the agreement will be an express agreement and understanding by the individuals in question that they are independent contractors and not employees of the Customer.
- Governing Law. This Agreement and the rights and obligations of the parties created hereby will be governed by and construed in accordance with the internal laws of the State of Kansas without regard to its conflict of law rules. All questions concerning the validity, interpretation or performance of any of its terms or provisions or of any rights or obligations of the parties hereto, shall be resolved in any court of competent jurisdiction residing in Sedgwick County, Kansas and in accordance with the laws of the State of Kansas.
- Excusable Delay. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence or fault of the party seeking protection or excuse under this Section 16. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, failures of the Internet, earthquakes, wind, fire, loss of power and explosions; provided the inability of either party to meet its financial obligations under this Agreement is expressly excluded.
- Notices. All notices or other non-operational communications required to be given hereunder shall be in writing and delivered either personally or by U.S. mail, certified, return receipt requested, postage prepaid, and addressed as provided in the applicable SOW, or as otherwise requested by the receiving party. Notices delivered personally shall be effective upon delivery and notices delivered by mail shall be effective upon their receipt by the party to whom they are addressed.
- Waiver. Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party's right to take subsequent action. Except as expressly stated in this Agreement, no exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
- Dispute Resolution. The parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this Agreement. Failing such amicable settlement, any controversy, claim, or dispute arising under or relating to this Agreement, including the existence, validity, interpretation, performance, termination or breach thereof, shall finally be settled by arbitration in accordance with the Arbitration Rules (and if Customer is a non-U.S. entity, the International Arbitration Rules) of the American Arbitration Association (“AAA”). The language of the arbitration shall be English. No arbitrator will have the authority to award punitive damages. Each party shall bear its own expenses, but the parties will share equally the expenses of the arbitrator(s) and the AAA. This Agreement will be enforceable, and any arbitration award will be final, and judgment thereon may be entered in any court of competent jurisdiction. The arbitration will be held in Wichita, Kansas, USA. Notwithstanding the foregoing, claims for preliminary injunctive relief or other pre-judgment remedies arising out of a breach of Section 13 and claims for Customer’s failure to remit any payments in accordance with this Agreement may be brought in any state or federal court located in Kansas in lieu of arbitration.
- Expenses of Enforcement. In the event of any default regardless of whether cured, Customer will pay ITG a sum equal to all expenses, including attorneys' fees, if any, incurred by ITG in connection with the enforcement of any of ITG's remedies and all expenses of repossessing, storing, repairing, selling or re-leasing the Purchased IT Equipment together with interest on such amount at the maximum annual rate allowable by law or one and one-half percent (1 1/2%) per month, whichever is more, until the date when such amounts are paid to or collected by ITG. In the event litigation or arbitration is instituted to enforce this Agreement, the prevailing party will be entitled to recover from the other party such sum as the arbiter or court, as the case may be, may judge reasonable as attorneys' fees at trial and upon appeal, in addition to all other sums provided by law.
- Further Information of Customer. Upon request from ITG, Customer will provide ITG with any corporate resolutions, financial statements, and all other documents regarding the financial or credit condition of Customer that ITG may reasonably request. Customer will promptly execute and deliver to ITG such further reasonable documents and take such further reasonable action as ITG may request in order to more effectively carry out the intent and purpose of this Agreement or an assignment of ITG's interest herein.
- Limitations of Actions. No actions, regardless of form or basis, arising out of transactions related to this Agreement, including the IT Equipment provided or sold and the Managed IT Services performed or to be performed may be brought by either party more than two (2) years after the cause of action has first accrued except that an action for nonpayment may be brought within two (2) years after the date of last payment owed by Customer under this Agreement.
- Number and Captions. As used herein, the singular will include the plural, and the plural, the singular. All captions are intended solely for convenience and will in no way be deemed to limit or explain any of the provisions of this Agreement.
- Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
- Entire Agreement. This Agreement (as defined above) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both parties. In the event of a conflict between or among the terms set forth in the terms and conditions of this MSA, and any SOW, or any other document made a part hereof, the documents shall control in the following order: the terms and conditions of this MSA shall control unless a SOW expressly provides otherwise by reference to the terms and conditions of this MSA and the contradicting statement or section of the terms and conditions of this MSA, and in such event the SOW with the latest date shall control, and then the terms and conditions of this MSA if the SOW satisfies the foregoing condition, and then any other documents.