|This Master Services Agreement (“Agreement”) by and between Client and Contractor known as Blackhawk MSP, is effective immediately upon signing.|
|1. Performance of Services: Blackhawk MSP shall provide the Information Technology infrastructure support services set forth in the attached Professional Services Schedule (“Schedule”) and any subsequent schedules executed by the parties. All services shall be subject to, and performed in accordance with, this Agreement, the schedules attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. Each Schedule shall set forth the type of services to be performed and the related fees. Fees shall be subject to change by Blackhawk MSP upon notice to Client. Any fee estimates provided for work to be billed on an hourly or daily basis are for informational purposes only; Client agrees to pay for the actual services provided by Blackhawk MSP at the specified rate.|
|2. Fees & Payment: Client agrees to pay all fees specified on each Schedule. Blackhawk MSP shall submit to the Client, on the first day of each month, its bill for services itemizing the fees and costs incurred during the previous month. All payments shall be made in U.S. dollars and will be due within forty-five (15) days of Client’s receipt of the applicable invoice. Blackhawk MSP may bill in advance for any recurring service. Client shall be responsible for all taxes, withholdings, duties and levies arising from the services (excluding taxes based on the net income of Blackhawk MSP). Blackhawk MSP shall have the right to suspend service if Client has failed to pay any invoice within forty-five (30) days of receipt.|
|3. Terms of Agreement:(a) Unless terminated earlier in accordance with (b) below, the initial term of this Agreement shall commence on the Effective Date and terminate twelve (12) months thereafter. This Agreement shall automatically renew for successive one (1) year terms unless either party provides the other with notification of termination at least thirty (30) days prior to expiration of the then-current term.(b) Either party may terminate this Agreement (including any and all Schedules) at any time if the other party: (i) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach or (ii) ceases operation without a successor. |
Either party may terminate this Agreement without cause upon sixty (30) days written notice to the other party.(c) Upon any termination of this Agreement, and upon expiration of the term if Client does not renew in accordance with Section 3(a), the rights granted hereunder will automatically terminate, and Client may not continue to use the services.
If the Agreement is terminated based on Blackhawk MSP’s uncured material breach, Blackhawk MSP shall refund to Client any prepaid fees covering the remainder of the term after the effective date of such termination. If the Agreement is terminated based on Client’s uncured material breach, Client shall pay any unpaid fees covering the remainder of the term after the effective date of such termination. Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Sections 4 (Confidential and Proprietary Information), 5 (Indemnification) and 6-11 (general terms) shall survive any expiration or termination of this Agreement.
|4. Confidential and Proprietary Information: Each party agrees that all know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Except as may be necessary to perform its obligations under this Agreement, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. |
The Receiving Party ’s nondisclosure obligation shall not apply to information that: (i) was known to it prior to receipt of the Confidential Information; (ii) is publicly available; (iii) is rightfully obtained by the Receiving Party from a third party; (iv) is independently developed by employees of the Receiving Party; or (v) is required to be disclosed pursuant to a regulation, law or court order.Any templates, schematics, processes or technical documentation provided by Blackhawk MSP shall be deemed Confidential Information and proprietary information of Blackhawk MSP without any marking or further designation. Clients may use such information solely for its own internal business purposes.
Blackhawk MSP shall maintain the confidentiality of information in its possession regarding individual protected health information in accordance with applicable law, and shall not release such information, to any other person or entity, except as required by law.
|5. Indemnification: Blackhawk MSP shall indemnify, defend with counsel acceptable to Client, and hold harmless Client, its officers, officials, employees and volunteers from and against all liability, loss, damage, expense, cost (including without limitation reasonable attorneys fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with Blackhawk MSP’s performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement, regardless of Client’s passive negligence, but excepting such loss or damage which is caused by the sole active negligence or willful misconduct of Client. |
It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement.
|6. Independent Contractor: The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.|
|7. Assignment: Blackhawk MSP shall not assign or transfer any interest in this Agreement without the express prior written consent of Client.|
|8. Disputes; Governing Law; Mediation: California law will govern and enforce this Agreement. Any litigation or mediation between Client and Blackhawk MSP will take place in any state court located within Contra Costa County, California or federal court within the Northern District of California. Client and Blackhawk MSP waive any objection to personal jurisdiction or venue in any forum located in those jurisdictions. |
Except for a claim of payments of amounts due, no action, regardless of form, arising out of this Agreement may be brought by either party against the other more than one year after the cause of action has arisen. At the option of either Client or Blackhawk MSP, any dispute arising from or with respect to this Agreement will be decided by mediation. At the request of either party, proceedings may be conducted in secrecy. If mediation can’t come to a conclusion then both parties agree to arbitration.
|9. Force Majeure: (Force majeure is a common clause in contracts that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties happens.)Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as strikes, blockade, war, terrorism, riots, natural disasters, pandemics, and/or refusal of license by the government, insofar as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.|
|10. Waiver and Severability: Waiver or failure by either party to exercise in any respect any right provided for in the Agreement will not be deemed a waiver of any further right under this Agreement. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of this Agreement will continue in full force and effect.|
|11. Entire Agreement: This Agreement, including any and all attachments and schedules attached hereto, contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be supplemented, amended or modified by a writing signed by both parties.|
|12. Notices: Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:|
Contractor: Blackhawk MSPSan Ramon, CA 94583Attn: Ryan C. Smith, Owner
|You agree to these terms and conditions of this agreement. Thank you for your business!|