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Master Services Agreement
Master Services Agreement
Master Services Agreement
Version 2.0
CLIENT NAME – MASTER SERVICES AGREEMENT This Master Services Agreement (“Agreement”) dated DATE, by and between Contingent Network Services, LLC ("CNS"), an Ohio limited liability company (“CNS”) with its principal offices located at 10008 International Boulevard, Cincinnati, Ohio, 45246 and CLIENT NAME, ("Client"), shall prevail and take precedence over all terms and conditions that are preprinted, typed, stamped or handwritten on any quotation form, invoice, acknowledgment form, or purchase order utilized by either party in the transactions covered by this Agreement. The pricing and terms of this Agreement are valid for (30) thirty days from the date submitted to the Client. CNS and Client agree as follows: 1.0 SCOPE/PRODUCTS/MATERIALS Appendix(cies) attached herewith provide(s) a detailed scope, the required materials, and all expenses associated with each activity. The intent is that a site’s activity be billed using the itemized list included in Appendix A, picked from the list as required. Please note that shipping has not been included for any of the associated materials. 2.0 STANDARD TERMS 2.1 OUT OF SCOPE HOURLY CHARGE Rates described within applicable Appendices, Addendums, Change Orders, Enclosures or other agreements apply for general out-of-scope labor services for Contingent personnel and are associated with one hour of labor. Client authorizes up to two (2) hours of out-of-scope services at any site without additional approval from Client. 2.2 REVISIT & MINIMUM TRIP CHARGE PRICE: $185.00 per incident This is the fee associated with travel to a Customer site when a revisit by CNS is required to complete a previously schedule activity. The fee is per incident for travel within fifty (50) miles from the base office location of the personnel utilized. For distances over fifty (50) miles, the out of scope hourly rate shall apply and may include per Diem and overnight accommodations. A minimum trip charge of $185 applies to all jobs. 2.3 OTHER STANDARD TERMS  Prices for on-site labor are based upon standard rate, non-union. If a facility requires unionized resources for installation, the price may need to be adjusted to reflect the associated union rates.  Access will be provided to the facility without restriction during the installation and any delay on-site due to inaccessibility to required areas will be considered out of scope and billed at the out of scope hourly rate.  All travel costs associated with Project Management will be billed to Client at cost.  All necessary site preparation will be completed by Client, unless otherwise agreed, prior to performing the activities required for this project and any delay on-site due to lack of preparation will be considered out of scope and billed at the out of scope hourly rate.  Cable installation estimates assume a clear, available pathway. Performing the services associated with creating a clear, available pathway will be performed and billed at the out of scope labor rate and for additional materials.  When performance is at an hourly rate, CNS is not responsible for work stoppages that occur as a result of waiting for Client callbacks, release, etc. CNS shall inform Client of delays that are impacting work progress.  Client is ultimately responsible for damaged or inoperable equipment as a result of instructions delivered by the Client. CNS does not share in this responsibility unless such damage or inoperability is caused by the negligence of CNS or its agents or from failure to appropriately follow Client’s instructions.  CNS is not responsible for physical security of the product or network.  CNS is not responsible for data backup, loss, or retrieval associated with performance of the services described herein.  Whenever the process requires a call to the Client, the hold time (or return call time) will not exceed twenty (20) minutes in total. After twenty (20) minutes of waiting, CNS will begin escalation. CNS will bill Client for additional hold times in half (1/2) hour increments at the prevailing rate. This also applies to situations where the CNS resource is waiting to be released from the site by Client.  As required, CNS may utilize the Contingent Certified Partner (CI) Network for performance of services on a Client’s Customer site.  Each party is acting as an independent contractor. This Agreement is nonexclusive and does not create an agency relationship, partnership, or joint venture. Neither party shall have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other unless otherwise agreed herein.  CNS may act as a duly authorized agent on behalf of the Client only for the purposes of ______________________________________________________________________ _______________________________________________________________________.  Minor or ancillary materials (i.e., items costing individually less than $25.00 each) will be chosen and supplied by CNS unless a technical requirement invoked within a specific SOW produces the need for a specific or unique product/material. CNS shall use best efforts to select product/material that will meet all technical requirements and be the most cost effective. Storage of Client-owned materials for more than sixty (60) days will accrue storage fees equivalent to the current published rates for space rental (in the appropriate quantity of space) found online at www.contingent.net and will be invoiced per the terms of Section 10.0 below for the duration that the materials reside in Contingent’s facilities or those of its partners, contractors and affiliates.  For each product procured by CNS, title to each product will pass to the Client on the product’s Shipment Date or on the Installation Date (if installed by CNS). After delivery or installation of the products at the Client’s Customer’s premises, Client shall bear such risk of loss unless the loss is caused by CNS’s negligence or that of CNS’s agents or subcontractors. For products procured by CNS but which will not be installed by CNS, Client shall bear the risk of loss once CNS has delivered the products to the common carrier on the Shipment Date.  Work Product will be deemed accepted by Client via electronic mail prior to CNS departing the site unless otherwise agreed herein.  For each project, an estimated schedule shall be developed and agreed to between both parties.  CNS may charge a fee to cancel or expedite a prescheduled task, activity or visit if less than 48 hours notice is provided by Client until expedited arrival time on site. CNS will charge a $50 cancellation fee for less than 24 hours notice plus the charges for time spent by field personnel when cancellation occurs after field personnel have departed their origination point for the cancelled destination. Cancellation of an activity may impact unit pricing for remaining activities. CNS will charge a 50% labor expedite fee for less than 48 hours notice and a 100% labor expedite fee for less than 24 hours notice.  Upon request, CNS shall provide a Monthly Summary Report to Client. The report shall contain summarized completed service information. CNS shall provide the report by electronic mail to the recipients within seven (7) business days of the completion of the prior month.  CNS shall furnish deliverables, when required within thirty (30) days following completion of the site. 3.0 LABOR WARRANTY CNS will warrant all workmanship for the lifetime of the installation, once completed, tested and approved by the Client and customer. This warranty only applies to the labor (product warranties are not inclusive). The warranty will be null and void if it is determined that a repair is required due to negligence, misuse, or abuse on the behalf of the Client and/or Customer, acts of God, or performance of work at the site by a party other than CNS or via CNS dispatch. 4.0 NOTICES AND ESCALATIONS All notices and escalations made under this Agreement shall be in writing and delivered by facsimile, electronic mail or other electronic means (in which case the recipient will provide acknowledgment within one (1) business day separately from any machine-generated automatic reply); or by prepaid means providing proof of delivery. 5.0 CHANGE ORDERS Either party may request a change to an SOW, and such change shall be deemed made only if set forth in a writing that references the SOW and that has been signed or otherwise approved electronically by authorized representatives of each party. Changes will need to be evaluated regarding the impact to price, schedule, or liability. Neither party shall unreasonably delay reviewing changes as a delay could impact the performance of the activities identified in the SOW within the required timeframe. 6.0 STATEMENT OF CONFIDENTIALITY This document may contain trade secrets and information that is company sensitive, proprietary, and confidential, the disclosure of which would provide a competitive advantage to others. As a result, this document shall not be disclosed, used or duplicated, in whole or in part, for any purpose other than to evaluate it by internal Client personnel. If a contract is awarded to Contingent Network Services, as a result of, or in connection with the submission of this document, any right to duplicate, use, or disclose the data will be to the extent provided in the resulting agreement. This restriction does not limit the rights of the recipient to use information contained in the data if it is rightfully obtained from another source without restriction. 7.0 TERM AND TERMINATION This Agreement shall remain in force for a period of XX months from the date of execution by both parties. This Agreement will automatically renew after the initial term and will continue on a series of five consecutive one year renewals unless notification by either party of their intention to terminate the Agreement. Either party may terminate without cause with thirty (30) days written notice to the other party. Obligations under this Agreement and its Appendices, Exhibits, Attachments, Addendums and Change Orders will survive such termination until work performed under each is concluded. CNS will be entitled to payment for all satisfactory work completed as of the effective date of termination. 8.0 ASSIGNMENT This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. In the event either party merges with or is acquired by a third party, the obligations and responsibilities defined throughout the agreement automatically transfer and become those of the third party acquirer or the merged “new” company. 9.0 WORK PRODUCT RIGHT The term "Work Product," as used in this Agreement, refers to all items, including works of authorship, programs, documentation, products, or other materials or items, prepared for or delivered to Client by CNS, its employees, agents or subcontractors during the term, or otherwise produced as a result, of this Agreement or any SOW issued hereunder. Unless stated otherwise in the SOW, the Client on its behalf and on behalf of its employees, agents and subcontractors, grants, releases and assigns to CNS all right, title and interest, including ownership of copyrights, in the Work Product. All Work Product created by CNS, its employees, agents or subcontractors while providing services to Client under this Agreement shall be the sole and exclusive property of CNS. To the extent that any pre-existing materials are contained in the Work Product, Client grants CNS an irrevocable, worldwide, nonexclusive, paid-up, royalty-free right and license to use, execute, reproduce, perform, display, distribute, and prepare derivative works of such pre-existing material and derivative works, as well as to authorize others to do any or all of the above. Upon CNS’ request, Client shall provide CNS with such assistance as CNS may require, including whatever documents, information or materials are in Client's possession or available to Client, in order to enable CNS to protect its ownership rights, including copyrights, in any Work Product. 10.0 INVOICING AND PAYMENT For labor, CNS will invoice Client as work is completed by site, or monthly at the minimum. Materials will be invoiced the earlier of: as they ship to the Client site or when they arrive any CNS facility. Payment is due to Contingent net 30 days from invoice date. Any delinquencies will be charged a 1.5% (of amount late) monthly late fee (18% annually) cumulative beginning on the first day of delinquency. For material orders in excess of $10,000 CNS may reserve the right to request up-front payment (up to 100%) prior to placing the order. When deliverables are required by Client, following receipt of the invoice, the net 30 day term s start at the time the deliverables are received by the Client. 11.0 GENERAL PROVISIONS  Non-Solicitation of Personnel. During the term of this Agreement neither party will actively solicit the other party's employees, contractors or students for employment.  All Amendments in Writing. No waiver, amendment or modification of any provisions of this Agreement shall be effective unless it is in writing, prepared as an amendment referencing this Agreement, and signed by duly authorized representatives of both parties. Furthermore, no provisions in either party's purchase orders, invoices or other business forms employed by either party shall supersede the terms and conditions of this Agreement.  Force Majeure. Neither party shall be responsible for delays or failure of performance resulting from acts beyond the reasonable control of such party. Such acts include, but are not limited to, acts of God, strikes, walkouts, riots, acts of war, epidemics, governmental regulations, power failures, earthquakes, or other disaster.  Governing Law. The substantive law of the State of Ohio, excluding its rules on conflict of law, will govern this Agreement.  Severability. If any provision of this Agreement is held to be invalid or unenforceable, it is to that extent to be deemed omitted and the remaining provisions of this Agreement shall remain in full force and effect.  Entire Agreement. This Agreement, which includes all SOWs issued hereunder, constitutes the entire agreement between Client and CNS concerning the subject matter hereof and thereof, and supersedes all previous communications, representations, understandings and agreements, whether verbal or written, between the parties to this Agreement. 12.0 STANDARD DISCLAIMERS  FOR THE WARRANTY PERIOD, CNS WILL REMEDY, WITHOUT CHARGE TO CLIENT OR CLIENT'S CUSTOMER, NONCONFORMING SERVICES AND/OR DELIVERABLES. CNS SHALL RE-PERFORM OR BEGIN TO CORRECT NONCONFORMING WORK PROMPTLY UPON CLIENT'S NOTICE OF SUCH TO CNS, AND SHALL CONTINUE DILIGENTLY, UNTIL THE NONCONFORMITY IS CORRECTED. CNS RESERVES THE RIGHT TO CHARGE FOR RE-PERFORMANCE IF CNS DETERMINES THAT THE NONCONFORMITY WAS CAUSED BY (I) ISSUES RELATED TO CLIENT’S OBLIGATIONS UNDER THIS AGREEMENT SUCH AS DEFECTIVE CLIENT PARTS (IF PARTS ARE PROVIDED BY THE CLIENT AND ARE NOT STAGED), OR BY (II) UNAUTHORIZED ALTERATION OR MANIPULATION OF THE HARDWARE OR SOFTWARE BY THE END USER, OR (III) BY A FORCE MAJEURE EVENT. THE CHARGE FOR RE-PERFORMANCE WILL BE THOSE CHARGES RELATED SPECIFICALLY TO THE NONCONFORMING SERVICES OR DELIVERABLE(S) AS SET FORTH IN THE APPLICABLE SOW.  EXCEPT FOR WARRANTIES SPECIFICALLY CONTAINED IN THIS AGREEMENT OR A CONTRACT, CNS DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING. CNS DOES NOT WARRANT THAT SERVICES AND/OR DELIVERABLES WILL OPERATE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFICIENCIES, ERRORS, DEFECTS OR NONCONFORMITIES WILL BE CORRECTED. CNS HAS NO WARRANTY OBLIGATION FOR PRODUCTS, MATERIALS, OR SERVICES THAT CLIENT ACQUIRES FROM THIRD PARTIES, EVEN IF CNS ASSISTED IN EVALUATING OR SELECTING THEM. THE FAILURE OF PRODUCTS, MATERIALS, OR SERVICES CLIENT ACQUIRES FROM THIRD PARTIES OR THEIR SUPPLIERS WILL NOT AFFECT CLIENT’S OBLIGATIONS TO CNS. IF CNS DESIGNATES THAT ITS PRODUCTS, DELIVERABLES, OR SERVICES ARE PROVIDED “AS IS”, THERE IS NO WARRANTY.  EXCEPT FOR CLAIMS RELATED TO BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL CNS BE LIABLE FOR DAMAGES IN THE AGGREGATE FOR ALL STATEMENTS OF WORK, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, IN AN AMOUNT THAT EXCEEDS SIX (6) MONTHS OF RELATED CHARGES UP TO A MAXIMUM OF $1,000,000, FOR THE SERVICES OR DELIVERABLES UNDER THIS AGREEMENT. THE LIMITATION IN THE PREVIOUS SENTENCE SHALL NOT APPLY TO DAMAGES FOR BODILY INJURY (INCLUDING DEATH) OR DAMAGE TO TANGIBLE PROPERTY FOR WHICH CNS IS LEGALLY LIABLE.  IN NO EVENT SHALL CNS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF SAVINGS, OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OF THE SERVICES, WHETHER OR NOT CNS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Each party acknowledges that it has read the Agreement including all referenced exhibits, appendix and attachments hereto, if any, and agrees that it is the complete and exclusive understanding between the parties.
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