Unless otherwise agreed in a signed contract between the customer and Realized Solutions, Inc (RSI), we offer our services under the following terms.
RECITALS
WHEREAS, RSI provides managed information technology services, including remote monitoring and management, help desk and end-user support, security administration, and related managed services; and
WHEREAS, Client desires to engage RSI to provide certain services as described in this Agreement and the Schedules attached hereto;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1 – DEFINITIONS
As used in this Agreement, the following capitalized terms have the meanings set forth below. Additional terms may be defined elsewhere in this Agreement or in a Schedule.
“Agreement” means this Master Services Agreement, together with all exhibits and schedules attached hereto, as amended from time to time.
“Change Order” means a written amendment executed by authorized representatives of both Parties that modifies the scope of the Managed Services, the Covered Devices, the Fees, or other material terms of this Agreement or a Schedule.
“Client Data” means all data, records, and information (a) that is input into, stored in, or generated through Client’s systems, including when using the Services or RSI Technology deployed within Client’s environment, or (b) that Client otherwise provides to RSI in connection with this Agreement. For the avoidance of doubt, Client Data always remains within Client’s systems and environment; RSI does not host, store, or maintain possession or control of Client Data, and RSI’s access to Client Data is limited to remote access as necessary to perform the Services. RSI does not “process” Client Data.
“Client Materials” means all pre-existing documents, specifications, requirements, designs, content, software, and other materials owned by or licensed to Client that Client provides to RSI for use in performing the Services.
“Commencement Date” means the date on which the Managed Services are deemed to have commenced, as determined under Section 12.1.
“Confidential Information” means all non-public information disclosed by one Party to the other, whether orally, in writing, or electronically, that is designated as confidential or that a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information includes, without limitation, business plans, pricing, technical data, software, trade secrets, customer lists, and financial information.
“Covered Devices” means the servers, workstations, network devices, cloud services, backup systems, mobile devices, and other systems and equipment identified in Schedule A-1, as amended from time to time by written Change Order.
“Fees” means the fees, charges, and compensation payable by Client to RSI as set forth in Schedule A-2 or elsewhere in this Agreement, including charges for additional services and third-party pass-through costs.
“Intellectual Property Rights” means all patents, copyrights, trademarks, trade secrets, and other intellectual property rights worldwide.
“Managed Services” means the managed information technology services described in this Agreement and Schedule A-1.
“RSI Technology” means RSI’s tools, software, code libraries, connectors, frameworks, APIs, methodologies, processes, know-how, systems, and generalized improvements, whether developed before or during the term of this Agreement.
“Services” means the Managed Services and any additional services performed by RSI under this Agreement.
ARTICLE 2 – SERVICES
2.1 Engagement. RSI will provide the Managed Services described in this Agreement and Schedule A-1. RSI has no obligation to perform any work not expressly set forth in this Agreement or Schedule A-1.
2.2 Schedules. Schedule A-1 (Covered Environment and Services) and Schedule A-2 (Pricing) are incorporated into and form part of this Agreement. Neither Schedule may be amended except by written Change Order executed by authorized representatives of both Parties.
2.3 Order of Precedence. In the event of a conflict between this Agreement and a Schedule, this Agreement will control, except that a Schedule will control with respect to the matters described therein if it expressly states that it is amending a specifically identified provision of this Agreement.
2.4 Change Orders. No material change to the scope of the Managed Services, the Covered Devices, or the Fees will be effective unless set forth in a written Change Order executed by authorized representatives of both Parties. For clarity, informal communications (including emails) do not constitute Change Orders unless they are expressly identified as a Change Order and signed or approved in writing by an authorized representative of each Party.
2.5 Additional Services. If Client requests work that does not materially alter the scope of the Managed Services, RSI may perform such work at its then-current hourly rates. RSI will use commercially reasonable efforts to notify Client before performing material amounts of such additional work, and charges for additional services will appear on a separate Client invoice.
2.6 Client Environment. Client is responsible for maintaining its technology environment in a condition that meets the minimum standards set forth in Section 17.3. If Client’s environment does not meet those standards, the consequences and billing treatment set forth in Section 17.4 apply.
2.7 Site Access. If the Services require RSI personnel to access Client’s facilities, Client will be responsible for obtaining proper and adequate permission for RSI to enter upon and operate within Client’s premises. RSI will comply with Client’s reasonable on-site policies and procedures, including those regarding security and data privacy.
2.8 Project Work Excluded. This Agreement governs the Managed Services only. New technology implementations, migrations, custom engineering, and other project-based engagements are outside the scope of this Agreement and will be performed, if at all, and billed separately. No such project engagement will be deemed part of the Managed Services, and neither the Fees nor the service levels set forth in this Agreement apply to project work.
ARTICLE 3 – FEES AND PAYMENT
3.1 Fees. Client will pay RSI the Fees specified in Schedule A-2, together with charges for additional services and third-party costs as provided in this Agreement. Fees may include monthly recurring charges, hourly time-and-materials charges, and third-party pass-through charges.
3.2 Invoicing. RSI will invoice Client monthly in advance for monthly recurring Fees and approximately weekly in arrears for all other charges, unless otherwise stated in Schedule A-2. Invoices are due net fifteen (15) days from the invoice date.
3.3 Late Payment. Amounts not paid when due will bear interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by law, calculated from the due date until paid in full. Client will also reimburse RSI for all reasonable costs and expenses incurred in connection with collection of overdue amounts, including attorneys’ fees. Interest accrues on overdue amounts whether or not invoiced, and RSI’s failure to invoice or collect interest or collection costs on any overdue amount, on one or more occasions, will not waive RSI’s right to invoice or collect those amounts at any later time.
3.4 Taxes. Fees are exclusive of all taxes, levies, and duties. Client is responsible for all applicable taxes other than taxes based on RSI’s property or net income.
3.5 Third-Party Products. Where RSI procures third-party hardware, software, or services on Client’s behalf at Client’s request, Client will pay those invoices before RSI places the order. Third-party products are subject to applicable third-party terms and are not warranted by RSI. Third-party costs are Client’s responsibility and are not included in the monthly recurring Fees unless expressly stated in Schedule A-2.
3.6 Expense Reimbursement. RSI will be reimbursed for reasonable, pre-approved out-of-pocket expenses incurred in performing the Services upon submission of documentation to Client.
3.7 Rate Adjustments. The monthly recurring Fees escalate automatically as provided in Section 9.2. RSI may adjust the monthly recurring Fees beyond that automatic escalation only upon written notice to Client given at least ten (10) days before the deadline for Client to give notice of non-renewal under Section 9.2, effective at the start of the next Renewal Period, and no such adjustment will take effect during the Initial Term of the Three-Year Option. This Section 3.7 does not apply to charges governed by Section 3.8.
3.8 Third-Party Cost Increases. Charges for third-party software, licensing, subscriptions, cloud services, telecommunications services, and cybersecurity services procured by RSI on Client’s behalf are pass-through charges at the parent vendor’s then-retail price and may be adjusted at any time, including during the Initial Term, to reflect any increase imposed by the underlying vendor. RSI will notify Client of any such adjustment as promptly as practicable and, where the vendor has given RSI advance notice, before the adjustment takes effect. Any such adjustment is limited to the amount of the increase imposed by the vendor. Adjustments under this Section 3.8 are not subject to Section 3.7 and are separate from the annual escalation under Section 9.2.
ARTICLE 4 – INTELLECTUAL PROPERTY
4.1 RSI Technology. RSI retains all right, title, and interest in and to RSI Technology, including all Intellectual Property Rights therein. Nothing in this Agreement transfers ownership of RSI Technology to Client. For the avoidance of doubt, RSI Technology includes all software, source code, object code, scripts, tools, algorithms, workflows, interfaces, APIs, connectors, plug-ins, integrations, frameworks, code libraries, information management tools, methodologies, know-how, configurations, systems, and generalized improvements conceived, developed, or used by RSI, whether before or during the term of this Agreement. This Agreement does not grant Client any intellectual property license or rights in or to RSI Technology or any of its components, except as expressly set forth herein.
4.2 Client Materials and Client Data. Client retains all right, title, and interest in and to Client Materials and Client Data. Client grants RSI a limited, non-exclusive license to access Client Materials and Client Data solely as necessary to perform the Services during the term of this Agreement.
4.3 Service Materials License. Subject to Client’s full payment of all Fees due under this Agreement, RSI grants Client a limited, non-exclusive, non-transferable, perpetual, royalty-free license to use the documentation, reports, network diagrams, and similar written materials RSI delivers to Client in the course of performing the Managed Services (the “Service Materials”) solely for Client’s internal business purposes. To the extent any Service Material incorporates or operates in conjunction with RSI Technology, Client is granted a limited license to use such RSI Technology solely as embedded within or necessary to use the Service Material; provided, however, that upon termination or expiration of this Agreement, Client’s right to use any Service Materialthat consists of or contains software, code, connectors, integrations, or other technology incorporating RSI Technology will immediately terminate.
4.4 No Assignment of RSI Technology. Notwithstanding anything to the contrary, no Schedule or Change Order will be construed to assign or transfer RSI Technology to Client unless it expressly states, with specific reference to this Section 4.4, that ownership of identified RSI Technology is being assigned to Client.
4.5 Feedback. If Client provides suggestions, ideas, or feedback regarding the Services or RSI Technology, RSI may freely use such feedback without restriction or obligation.
4.6 Restrictions on Use. Client will not, and will not permit any third party to: (a) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, or algorithms of any RSI Technology; (b) modify, create derivative works of, or attempt to replicate any RSI Technology; (c) use RSI Technology or Services for service bureau, time-sharing, or similar purposes, or otherwise make them available to third parties; (d) access or use RSI Technology or Services for purposes of developing a competing product or service, or to copy any ideas, features, functions, or graphics thereof; or (e) remove or circumvent any proprietary notices, labels, or security measures.
ARTICLE 5 – CONFIDENTIALITY
5.1 Obligations. Each Party (as “Receiving Party”) will: (a) hold the other Party’s (“Disclosing Party”) Confidential Information in strict confidence; (b) not disclose Confidential Information to any third party except to employees, contractors, and advisors who have a need to know and are bound by confidentiality obligations at least as protective as those herein; and (c) not use Confidential Information for any purpose other than performing obligations or exercising rights under this Agreement.
5.2 Exclusions. Confidential Information does not include information that: (a) is or becomes publicly available through no fault of the Receiving Party; (b) was rightfully known to the Receiving Party prior to disclosure without restriction; (c) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (d) is rightfully received from a third party without restriction.
5.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information to the extent required by law, regulation, or court order, provided that the Receiving Party gives the Disclosing Party prompt written notice (to the extent permitted) and reasonable cooperation to seek a protective order.
5.4 Return or Destruction. Upon termination or expiration of this Agreement (or upon request), the Receiving Party will promptly return or destroy all Confidential Information in its possession, except for copies retained in routine backups or as required by law, which will remain subject to the confidentiality obligations herein.
5.5 Duration. The obligations under this Article 5 will survive termination or expiration of this Agreement for a period of three (3) years, except with respect to trade secrets, which will be protected for so long as they remain trade secrets under applicable law.
5.6 Injunctive Relief. Each Party agrees that a breach or threatened breach of this Article 5 may cause irreparable harm for which monetary damages may not be an adequate remedy. In the event of any such breach, the non-breaching Party will be entitled, in addition to any other rights or remedies it may have at law or in equity, to seek temporary and permanent injunctive relief without the necessity of proving actual damages or posting a bond.
5.7 Passwords and Access Credentials. Client acknowledges that RSI must have access to systems, resources, and passwords required to perform the Services. All Client passwords and access credentials will be treated as Confidential Information of Client, and RSI will not disclose or permit any unauthorized third party to access any Client passwords without Client’s prior written consent. For clarity, RSI’s authorized employees and agents may access Client passwords as necessary to perform the Services, subject to the confidentiality and security obligations of this Agreement.
5.8 Security Incident Notification. If RSI becomes aware of a security incident affecting RSI’s own systems or the access credentials RSI holds under Section 5.7 that RSI reasonably believes has resulted in unauthorized access to Client Data, RSI will notify Client without undue delay and in any event within seventy-two (72) hours after RSI confirms the incident. RSI will provide Client with the information then reasonably available to RSI regarding the nature and scope of the incident and will reasonably cooperate with Client’s investigation. This Section does not apply to security incidents originating within Client’s environment, RSI’s response to which is governed by the Managed Services and Article 15.
ARTICLE 6 – REPRESENTATIONS AND WARRANTIES
6.1 Mutual Representations. Each Party represents and warrants that: (a) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation; (b) it has full power and authority to enter into this Agreement; and (c) execution of this Agreement does not conflict with any other agreement to which it is a party.
6.2 RSI Warranty. RSI warrants that the Services will be performed in a professional and workmanlike manner consistent with generally accepted industry standards. If Client notifies RSI in writing of a breach of this warranty within thirty (30) days after performance of the deficient Services, RSI will, at its sole option, re-perform the non-conforming Services or refund the Fees attributable to such non-conforming Services. This is Client’s sole and exclusive remedy for breach of this Section 6.2.
6.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, RSI MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. RSI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. RSI will have no responsibility or liability for the accuracy, completeness, or quality of Client Data or Client Materials, which remain within Client’s systems and under Client’s control.
6.4 Third-Party Systems. The Services may depend on or interoperate with third-party systems, platforms, software, or APIs not provided by RSI. RSI makes no representations or warranties regarding such third-party systems and will not be liable for any failure, interruption, or limitation of the Services caused by the unavailability, modification, or discontinuation of any third-party system. If a third-party system restricts or prevents RSI’s ability to provide the Services as contemplated, either Party may terminate the affected portion of the Managed Services upon written notice, and Client will pay for all Services performed through the effective date of termination.
6.5 No Guarantee of Security. Client acknowledges that no security measure, monitoring tool, or combination of them can prevent all security incidents, and that RSI does not warrant or guarantee that Client’s environment, systems, or data will be free from unauthorized access, malware, ransomware, phishing, social engineering, data loss, or other security incidents. RSI’s obligations with respect to security-related Managed Services are limited to performing those services in accordance with Section 6.2, and the occurrence of a security incident does not itself constitute a breach of this Agreement by RSI.
ARTICLE 7 – LIMITATION OF LIABILITY
7.1 Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, BUSINESS INTERRUPTION, OR COST OF REPLACEMENT SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE) AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 Liability Cap. EXCEPT FOR THE EXCLUSIONS IN SECTION 7.3, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CLIENT TO RSI UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
7.3 Exclusions from Cap. The following are not subject to the limitation in Section 7.2: (a) Client’s payment obligations for Fees and other amounts due under this Agreement; (b) Client’s breach of RSI’s Intellectual Property Rights hereunder; (c) either Party’s indemnification obligations under Article 8; and (d) liability arising from a Party’s gross negligence or willful misconduct.
7.4 Time Limitation on Claims. Except for claims for non-payment of Fees or other amounts due under this Agreement, no action or claim arising out of or relating to this Agreement may be brought by either Party more than one (1) year after the date on which the Party bringing the action first knew or reasonably should have known of the facts giving rise to the claim.
ARTICLE 8 – INDEMNIFICATION
8.1 RSI Indemnification. RSI will defend, indemnify, and hold harmless Client from and against any third-party claims, damages, losses, and reasonable expenses (including attorneys’ fees) arising from RSI’s: (a) infringement of a third party’s Intellectual Property Rights by the RSI Technology or Service Materials used or delivered by RSI in performing the Managed Services; or (b) gross negligence or willful misconduct in performing the Services.
8.2 Client Indemnification. Client will defend, indemnify, and hold harmless RSI from and against any third-party claims, damages, losses, and reasonable expenses (including attorneys’ fees) arising from: (a) Client Materials or Client Data, including any claim that Client Materials or Client Data infringe or violate a third party’s rights or applicable law; (b) Client’s use of the RSI Technology or Service Materials in a manner not authorized by this Agreement; or (c) Client’s gross negligence or willful misconduct.
8.3 Indemnification Procedure. The indemnified Party will: (a) promptly notify the indemnifying Party of the claim; (b) give the indemnifying Party sole control of the defense and settlement (provided that the indemnifying Party may not settle any claim that imposes obligations on the indemnified Party without its written consent); and (c) provide reasonable cooperation at the indemnifying Party’s expense.
ARTICLE 9 – TERM AND TERMINATION
9.1 Initial Term; Term Election. This Agreement is effective as of the Effective Date and, unless earlier terminated in accordance with this Article 9, will continue for the initial term elected by Client under this Section 9.1 (the “Initial Term”), beginning on the Commencement Date. At execution, Client must elect one of the following two term options in Schedule A-2: (a) an Initial Term of twelve (12) months at RSI’s standard pricing (the “Annual Option”); or (b) an Initial Term of thirty-six (36) months at a seven percent (7%) discount to RSI’s standard pricing in effect on the Commencement Date (the “Three-Year Option”). If Client does not make an election in Schedule A-2, the Annual Option applies.
9.2 Renewal; Annual Escalation. After the Initial Term, this Agreement will automatically renew for successive periods equal in length to the Initial Term elected by Client under Section 9.1 (each a “Renewal Period”) unless either Party provides written notice of non-renewal prior to the end of the then-current term by at least sixty (60) days if Client elected the Annual Option, or ninety (90) days if Client elected the Three-Year Option. The monthly recurring Fees will increase by five percent (5%) effective on each anniversary of the Commencement Date, including anniversaries occurring during the Initial Term and during each Renewal Period, applied to the monthly recurring Fees in effect immediately prior to that anniversary. For the Three-Year Option, the discount under Section 9.1 is applied once, to RSI’s standard pricing in effect on the Commencement Date, and is not reapplied at the start of any Renewal Period. The discounted Fees, as escalated under this Section 9.2, carry forward as the basis for Fees during each Renewal Period, so that the benefit of the original discount remains embedded in the Fees for so long as this Agreement continues.
9.3 Termination for Cause. Either Party may terminate this Agreement upon written notice if the other Party: (a) materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice specifying the breach; or (b) becomes insolvent, files or has filed against it a petition in bankruptcy, makes an assignment for the benefit of creditors, or ceases to operate in the ordinary course. Neither Party has any right to terminate this Agreement for convenience. If Client has elected the Three-Year Option, Client may not terminate this Agreement prior to the expiration of the then-current term, whether the Initial Term or a Renewal Period, for any reason other than RSI’s material breach under clause (a) or RSI’s insolvency under clause (b) of this Section 9.3.
9.4 Suspension. RSI may suspend Services and Client’s access to RSI Technology, without advance notice (although RSI will use commercially reasonable efforts to notify Client before doing so where practicable), if: (a) any undisputed amount is more than fifteen (15) days past due; (b) RSI reasonably suspects that Client has breached the acceptable use or restrictions provisions of this Agreement; or (c) RSI reasonably determines that suspension is necessary to protect the security or integrity of RSI Technology. Suspension does not relieve Client of its payment obligations or any other obligations under this Agreement.
9.5 Change of Control. Client may not assign this Agreement or transfer rights in connection with a Change of Control of Client without RSI’s prior written consent, which consent will not be unreasonably withheld, conditioned, or delayed, and which is not required for a reorganization among Client’s affiliates that does not result in a change in ultimate beneficial ownership, provided that the acquiring or surviving entity assumes all obligations under this Agreement, remains financially capable of performing such obligations, and does not expand the scope, users, affiliates, systems, or services covered under this Agreement without RSI’s prior written agreement. For purposes of this Section, “Change of Control” means the sale or transfer of all or substantially all of Client’s assets, stock, or membership interests, or any transaction in which Client no longer controls a majority interest in the entity.
9.6 Effect of Termination. Upon termination or expiration of this Agreement: (a) RSI will cease performing the Services; (b) Client will pay RSI for all Services performed and expenses incurred through the effective date of termination; (c) if RSI terminates for Client’s breach or Client terminates other than for RSI’s material breach, Client will pay all Fees that would have been payable for the remainder of the then-current term of this Agreement, to the extent permitted by law (the Parties acknowledge that RSI’s Fees reflect RSI’s allocation of personnel, resources, and capacity, that early-termination damages are difficult to quantify, and that such payments are a reasonable estimate of damages and not a penalty); (d) each Party will return or destroy the other Party’s Confidential Information in accordance with Section 5.4; (e) licenses granted to Client with respect to Service Materials will survive termination, subject to Client’s full payment of all outstanding Fees; provided, however, that Client will not retain any rights to RSI Technology, including RMM tools, agents, scripts, connectors, software, or platform components, and RSI’s right to remove, disable, or decommission such RSI Technology will survive termination, which RSI will exercise upon reasonable notice to Client and in coordination with Client where practicable; and (f) RSI will delete or return to Client any Confidential Information of Client then in RSI’s possession.
9.7 Survival. The following provisions will survive termination or expiration of this Agreement: Articles 1, 4, 5 (as limited by Section 5.5), 6, 7, 8, 10, and 11, and Sections 9.6, 9.7, 12.2 (Monitoring Tools), and 18.1 (Transition Assistance).
ARTICLE 10 – NON-SOLICITATION
10.1 Non-Solicitation of Personnel. During the term of this Agreement and for a period of two (2) years following its termination or expiration, neither Party will, directly or indirectly, solicit, entice, induce, or encourage any person who is then, or who was at any time within the two (2) years preceding the date of the relevant solicitation or hire, an employee, contractor, or other personnel of the other Party to leave the employment of or contractor relationship with the other Party, or hire or engage any such person in any capacity, without the prior written consent of the other Party. This restriction applies regardless of how the hiring Party comes into contact with such person, including where the person responds to a general employment advertisement or general recruiting effort of the hiring Party or applies to the hiring Party without solicitation.
10.2 Liquidated Damages. Each Party acknowledges that a breach of Section 10.1 will cause monetary damages to the other Party that are difficult to quantify. If either Party breaches Section 10.1, the breaching Party will pay the non-breaching Party, as liquidated damages, an amount equal to one hundred percent (100%) of the total annual compensation (including salary and expected bonuses) that the non-breaching Party was paying to such employee or contractor at the time of the breach, plus all reasonable costs and expenses, including attorneys’ fees, incurred in enforcing this Article 10. The Parties agree that this amount is a reasonable estimate of damages and not a penalty.
10.3 Injunctive Relief. Each Party agrees that a breach or threatened breach of this Article 10 may cause irreparable harm for which monetary damages may not be an adequate remedy. In the event of any such breach, the non-breaching Party will be entitled, in addition to any other rights or remedies it may have at law or in equity, to seek temporary and permanent injunctive relief without the necessity of proving actual damages or posting a bond.
ARTICLE 11 – GENERAL PROVISIONS
11.1 Independent Contractor. RSI is an independent contractor. Nothing in this Agreement creates an employment, agency, partnership, or joint venture relationship between the Parties. RSI personnel are not employees or agents of Client. For purposes of this Agreement, “RSI” includes RSI’s subcontractors, contractors, and agents acting on RSI’s behalf in performing the Services.
11.2 Assignment. Neither Party may assign this Agreement without the other Party’s prior written consent, except that RSI may assign this Agreement to an affiliate or in connection with a merger, acquisition, or sale of substantially all of its assets. Any purported assignment in violation of this Section is void.
11.3 Notices. All notices under this Agreement must be in writing and delivered by hand, overnight courier, or certified mail to the addresses set forth in the preamble to this Agreement (or such other address as a Party may designate in writing). Notices are effective upon receipt.
11.4 Force Majeure. Neither Party will be liable for failure or delay in performing its obligations (other than payment obligations) to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, war, terrorism, epidemics, government actions, power failures, internet outages, or third-party telecommunications failures.
11.5 Governing Law; Venue. This Agreement is governed by and construed in accordance with the laws of the State of Connecticut, without regard to its conflict of laws principles. Any dispute arising out of or relating to this Agreement will be resolved exclusively in the state or federal courts located in Hartford County, Connecticut, and each Party consents to the personal jurisdiction of such courts.
11.6 Entire Agreement. This Agreement (including all Exhibits and Schedules) constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, and communications, whether written or oral. Any reference to a purchase order or similar documentation on an invoice or other document is solely for Client’s convenience in record keeping, and no such reference or the provision of Services to Client will be deemed an acknowledgment of or agreement to any terms or conditions associated with any such purchase order or Client-provided documentation. Any such associated terms and conditions will be of no force and effect.
11.7 Amendment. This Agreement may be amended only by a written instrument executed by authorized representatives of both Parties.
11.8 Waiver. No waiver of any right or remedy under this Agreement will be effective unless in writing. A waiver of any breach will not constitute a waiver of any subsequent breach. No failure or delay by either Party in exercising any right or remedy under this Agreement will operate as a waiver of that right or remedy, and no single or partial exercise of any right or remedy will preclude any further exercise of it or of any other right or remedy. No course of dealing between the Parties, and no forbearance in enforcing any provision of this Agreement, will amend this Agreement or waive either Party’s right to enforce that provision at any time.
11.9 Severability. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions will remain in full force and effect, and the invalid provision will be modified to the minimum extent necessary to make it valid and enforceable.
11.10 Counterparts. This Agreement may be executed in counterparts, each of which is an original and all of which together constitute one instrument. Electronic signatures will be deemed original signatures for all purposes.
11.11 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their permitted successors and assigns. Nothing herein confers any rights on any third party.
ARTICLE 12 – MANAGED SERVICES
RSI will provide Client with the Managed Services described in this Agreement. The Managed Services are limited to the scope set forth below and the Covered Devices and systems identified in Schedule A-1.
12.1 Onboarding. RSI will conduct an initial onboarding process consisting of: (a) discovery and documentation of Client’s covered environment; (b) deployment and configuration of RSI’s monitoring and management tools; (c) baseline assessment of system health; (d) configuration of alerting thresholds and escalation contacts; and (e) a knowledge transfer session to familiarize Client’s designated contacts with support procedures. The onboarding period is estimated at [___] business days from the Effective Date. The Managed Services will be deemed to have commenced upon completion of onboarding or [___] days after the Effective Date, whichever occurs first (the “Commencement Date”).
12.2 Monitoring Tools. RSI will deploy remote monitoring and management (RMM) agents and related tools on Covered Devices as necessary to perform the Managed Services. Client authorizes RSI to install, update, and maintain such tools. As between the Parties, the tools remain RSI’s property. Upon termination or expiration of this Agreement, RSI will remotely uninstall its proprietary tools from Covered Devices, and Client will cooperate in removing any tools that cannot be remotely uninstalled. Client will not reverse engineer, disable, or interfere with RSI’s tools during the term of this Agreement.
12.3 Service Delivery. The Managed Services will be delivered primarily through remote means. On-site support is not included unless expressly stated in Schedule A-1 or separately agreed in writing. If on-site support is required and agreed, travel time and reasonable travel expenses will be billed in addition to applicable hourly rates, subject to Section 2.7 (Site Access).
12.4 Third-Party Vendor Coordination. As part of the Managed Services, RSI will use commercially reasonable efforts to coordinate with third-party vendors on Client’s behalf when troubleshooting issues that involve third-party products or services covered under this Agreement. Such reasonable coordination includes: (a) opening support tickets with third-party vendors; (b) providing diagnostic information and system logs; (c) participating in initial troubleshooting calls; and (d) communicating vendor recommendations to Client. RSI is not responsible for the performance, response times, resolution quality, or actions of third-party vendors. Time spent on extended third-party vendor coordination (exceeding two (2) hours per incident) will be billed as additionalservices pursuant to Section 2.5 (Additional Services). Client remains responsible for maintaining valid support contracts with third-party vendors for Covered Devices and software.
ARTICLE 13 – SCOPE OF MANAGED SERVICES
The Managed Services may include any combination of the following, as specified in Schedule A-1:
- Server monitoring, maintenance, and patch management
- Desktop/workstation monitoring and maintenance
- Network device monitoring and management
- Antivirus / anti-malware management and response
- Active Directory, DNS, and DHCP administration
- File and print services administration
- Microsoft 365 administration and support
- Mobile device management (MDM)
- Multi-factor authentication (MFA) configuration and management
- Security auditing, alerting, and log review
- Security awareness training administration
- Backup configuration, administration, storage management, and monthly verification/test restore
- Help desk and end-user support
- Other services as may be described in Schedule A-1
ARTICLE 14 – EXCLUSIONS
Unless expressly included in Schedule A-1 or addressed by a written Change Order, the Managed Services do not include:
- New technology implementations, projects, or major infrastructure changes
- Hardware procurement, replacement, or physical repair
- Support for unsupported, end-of-life, or end-of-support hardware or software
- Disaster recovery, business continuity, or backup services not specified herein
- Third-party software licensing or subscription fees
- Third-party vendor management or escalation beyond reasonable coordination
- Remediation of issues caused by modifications to covered systems made without prior notice to RSI
- Third-party application maintenance or programming/custom software development
- Litigation support, e-discovery, or forensic analysis
- Remediation of damage caused by force majeure events, environmental failures, or power surges
- Custom engineering/Major migrations
- On-site support (unless separately quoted and agreed)
ARTICLE 15 – SERVICE LEVELS
15.1 Priority Classification. Support requests will be classified according to the following priority levels:
| Priority | Definition | Target Response | Target Resolution | Escalation Threshold |
| P1 – Critical | Complete system outage or critical business function unavailable | 1 hour | ASAP / Best effort | 2 hours |
| P2 – High | Major functionality degraded; significant business impact; workaround may exist | 2 hours | ASAP / Best effort | 4 hours |
| P3 – Medium | Non-critical functionality impaired; limited business impact | 8 business hours | 72 business hours (target) | 8 hours |
| P4 – Low | Minor issue, informational request, or scheduled task | 24 business hours | 96 business hours (target) | 16 hours |
15.2 Response and Resolution. “Response” means acknowledgment of the issue and commencement of diagnostic activity. “Resolution” means restoration of service or implementation of a workaround that permits Client to resume substantially normal business operations. Resolution targets are best-effort goals and do not constitute guaranteed resolution times. Complex issues may require extended resolution periods; in such cases, RSI will provide Client with regular status updates and an estimated timeline for resolution.
15.3 Business Hours. Business hours are Monday through Friday, 9:00 AM to 5:00 PM Eastern Time, excluding the following U.S. public holidays: New Year’s Day, Presidents Day, Good Friday, Memorial Day, Independence Day (July 4th), Labor Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, and Christmas Day. RSI may observe additional holidays upon reasonable advance notice to Client. Priority 1 and Priority 2 issues are supported 24×7, including after-hours and holidays. Non-emergency requests received outside business hours will be addressed during the next business day.
15.4 After-Hours Support Rates. Support for Priority 3 and Priority 4 issues performed outside of business hours, at Client’s request, will be billed at RSI’s then-current after-hours rate, with a minimum charge of one (1) hour. RSI will provide its current after-hours rate schedule upon request.
15.5 Escalation. If a support ticket exceeds the escalation threshold without resolution or substantive progress, RSI will escalate to senior engineering resources and notify Client’s designated contact. For the quickest response, emergencies and critical issues should be reported to RSI at (860) 410-0670, Option 1. Detailed support and escalation procedures will be provided upon request and reviewed with Client during the onboarding process.
15.6 No Service Credits. The Parties acknowledge that the response and resolution times set forth in this Article 15 are performance targets and not warranties, and that no service credits, penalties, or financial remedies apply to missed response or resolution targets. This Section does not limit RSI’s warranty under Section 6.2.
15.7 Scheduled Maintenance. RSI may perform routine maintenance on Covered Devices and systems during scheduled maintenance windows. Unless otherwise agreed, standard maintenance windows are weekdays beyond normal business hours and on weekends. RSI will provide Client with at least 8 hours’ prior written notice of scheduled maintenance expected to cause service interruption. Emergency maintenance required to address security vulnerabilities or critical system issues may be performed outside scheduled windows with as much advance notice as practicable. Time during scheduled maintenance windows is excluded from response and resolution time calculations.
ARTICLE 16 – CLIENT RESPONSIBILITIES
Client will:
- Designate a primary point of contact authorized to submit service requests and approve changes
- Provide RSI with reasonable remote access to covered systems and environments, including: (i) stable, business-grade internet connectivity with sufficient bandwidth for remote support; (ii) VPN access or other secure remote access methods as reasonably required by RSI; and (iii) firewall and security configurations that permit RSI’s remote monitoring and management agents to communicate with RSI’s systems
- Maintain all hardware and software licensing in good standing
- Notify RSI promptly of any changes to the covered environment that may affect the Managed Services
- Not make material modifications to covered systems without prior notice to RSI
- Cooperate with RSI in scheduling maintenance windows
- Submit requests for changes to Covered Devices or systems (other than routine support requests) through RSI’s ticketing system or in writing to Client’s designated RSI contact. RSI will assess the requested change and, if the change is outside the scope of routine Managed Services, provide Client with an estimate of any additional fees and timeline. Material changes will not be implemented until Client provides written approval. For clarity, this Section governs operational and technical change requests; changes to the scope, Fees, or material terms of this Agreement require a Change Order pursuant to Section 2.4. Emergency changes required to address security incidents or critical outages may be implemented with verbal approval, to be confirmed in writing within 24 hours.
ARTICLE 17 – LIMITATIONS OF TECHNOLOGY
17.1 Compatibility. Client acknowledges that technologies are not universally compatible and that there may be services, devices, or systems that RSI may be unable to support. RSI will promptly inform Client in writing when such situations exist. Client agrees to work with RSI in good faith to develop a path forward, and acknowledges that RSI will not be liable for any inability to support incompatible technology.
17.2 Patching Risks. Client acknowledges that risks are associated with both applying and failing to apply patches and updated system components. RSI reviews and updates its best practices based on the relative risks associated with the timing of update delivery. RSI’s approach balances reducing vulnerabilities with the potential destabilization risk associated with applying new patches to otherwise stable systems.
17.3 Minimum Environment Standards. Client’s covered environment must meet the following minimum requirements for RSI to provide the Managed Services:
- All servers must run a currently supported operating system with the latest vendor-recommended security updates installed
- All workstations must run a currently supported operating system with automatic updates enabled or a managed patching solution in place
- All software must be genuine, properly licensed, and within the vendor’s active support lifecycle
- The environment must have a currently licensed and supported firewall between the internal network and the Internet
- Wireless networks must be secured with WPA2 encryption or higher (WPA3 preferred)
17.4 Non-Compliant Systems. RSI will notify Client in writing of any systems that do not meet the minimum standards set forth in Section 17.3. Services for non-compliant systems may be limited to monitoring and alerting only. RSI will not be responsible for failures, outages, security incidents, data loss, or performance issues arising from unsupported, unpatched, unlicensed, end-of-life, or non-compliant systems. Work to bring systems into compliance is outside the scope of this Agreement and will be billed as additional services pursuant to Section 2.5 (Additional Services).
ARTICLE 18 – TRANSITION ASSISTANCE
18.1 Transition Assistance. Upon expiration or termination of this Agreement, RSI will provide reasonable transition assistance for a period of up to thirty (30) days at RSI’s then-current hourly rates, unless otherwise agreed in writing.