MASTER AGREEMENT FOR KIZAN CONSULTING, SOFTWARE LICENSING AND MANAGED SERVICES
AGREEMENT made between "Client" and KiZAN Technologies, LLC at the address at 1831 Williamson Court, Suite K, Louisville, KY hereinafter called "KiZAN."
WHEREAS, Client desires to engage KiZAN to provide information technology consulting services and KiZAN desires to be engaged by Client pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. STATEMENT OF WORK; CHANGE REQUEST.
1.1. SERVICES SCOPE. KiZAN and the Client agree that all support, consulting and other services or advice, including any resulting deliverables (referred to collectively and individually herein, as the context requires, as “Service” or “Services”) are provided under the terms and conditions of this Agreement.
1.2. STATEMENT OF WORK. Statement of Work (“SOW”) can be a combination of fixed fee and expenses, time and expenses, recurring service fee, hardware, and/or one-time or recurring license fees. A document defining the scope of work (“Statement of Work”) shall be prepared for each Service engagement. Every SOW shall incorporate the terms of this Agreement by reference hereto or reproduction of the terms in the SOW. All SOW’s shall contain a summary of the project, fixed costs, estimated costs and/or hourly rate(s) as applicable. Each SOW may also include itemized Client responsibilities, KiZAN’s responsibilities and such additional information as the parties may agree upon and wish to include. Each SOW will be assigned a project number to facilitate identification and, when executed, be incorporated herein and become part hereof.
1.3. MANAGED SERVICES AGREEMENTS. Managed Service Agreements (“MSA”) may also be necessary to define user support and infrastructure management terms and conditions. If such managed services are required the terms, conditions, costs and responsibilities of KiZAN and Client will be enumerated in either a SOW or a separate MSA. These agreements segregate support services into specific categories that include monitoring, maintenance and support services, as well as any optional support offerings such as recurring health checks.
1.4. CHANGE REQUEST. Any changes to a SOW or MSA will be documented in a “Change Request” and must be signed by both parties. KiZAN will notify Client of the impact of a Change Request on the project schedule and cost. Client must approve changes in writing prior to the execution and inclusion in the SOW or MSA into the Agreement.
2. TERM; CANCELLATION.
This Agreement shall commence on the date first written above and shall continue in full force and effect until terminated by either party upon a ninety (90) day written notice unless an alternate termination provision is written into the SOW or MSA.
3. SERVICE TERMS.
Standard Service Terms apply to all services provided unless specifically amended in a signed SOW and/or MSA.
3.1. STANDARD SERVICE HOURS. Standard office hours of operation are Monday through Friday, 8:00am through 5:00pm EST, excluding all weekends and major federal holidays. For mutually agreed critical issues, KiZAN will make all reasonable efforts to provide four (4) hour response time, unless otherwise agreed in the Statement of Work.
3.2. EXTENDED SERVICE HOURS. Extended hours are those hours outside of KiZAN’s standard service hours. During extended hours, KiZAN provides 24-hour access to support as an option under its managed services contracts for its Clients. That support is provided by the Service Desk and after-hours teams.
3.3. SCHEDULING AND AVAILABILITY. KiZAN will always aim to provide the minimum response time possible under current operating conditions and staffing circumstances at the time of actual service requests as outlined in SOW or MSA.
3.4. SERVICE REQUESTS. KiZAN cannot and will not guarantee the response levels provided below for communications not made through the Service Desk. All service requests must contain: i) a clear and concise description of the request; ii) any required special instructions; iii) any necessary individuals’ contact information relating to the request; iv) come from a valid return email account (for automated acknowledgements of the request); and v) a clearly designated priority level.
3.5. SERVICE DESK. The Service Desk acts as a central point of contact for all technical support, including hardware and software questions and installations, networking, network connection requests, and troubleshooting (“Service Desk”). Client may submit requests online at ServiceDesk@KiZAN.com.
3.6. RESPONSE TIME. The time between receipt of the Service Desk submission and the time that a KiZAN staff member begins working on the issue. Due to the wide diversity of problems that can occur, and the methods needed to resolve them, response time IS NOT defined as the time between the receipt of a call and problem resolution. For mutually agreed critical issues, KiZAN will make all reasonable efforts to provide four (4) hour response time, unless otherwise agreed in the Statement of Work..
4. BILLING AND PAYMENT TERMS; TAXES; EXPENSES
4.1. BILLING TERMS. For time and expense-based services, time will be billed in fifteen (15) minute increments, rounded to the nearest fifteen (15) minute increment. In situations where KiZAN services are performed at Client-designated locations(s), a minimum of four (4) hours will be billed per work day. Where KiZAN consultants are required to travel more than two (2) hours in any single day, to a Client designated location(s), services will be billed at a minimum of eight (8) hours per work day. In addition, for time spent traveling to and from Client locations more than 30 miles from the KiZAN office providing the services, KiZAN will bill Client for travel at the rate specified in the SOW, plus mileage at the prevailing rate for federal income tax purposes.
4.2. INVOICE FREQUENCY. For time and expense based services, KiZAN will submit invoices on a bi-weekly basis to Client for services rendered and/or for expenses incurred. For fixed fee based services, KiZAN will invoice upon completion of milestones defined in the SOW. Managed Services will be invoiced in advance unless otherwise agreed upon in a signed MSA.
4.3. PAYMENT TERMS. Unless otherwise indicated on the invoice, payment terms for KiZAN services are Net 30 days, except for Software Licensing and third-party product orders, which are payable due upon receipt. Invoices submitted by KiZAN to Client are presumed to be accurate and fully payable on the terms contained therein unless disputed by Client within thirty (30) calendar days of Client’s receipt of the invoice. Any invoice delivered by United States Postal Service shall be deemed received two days after deposit with the United States Postal Service. Any invoice otherwise delivered shall be deemed received as follows: (a) if by private delivery service, on the date it is delivered as recorded by the private delivery service or (b) if by electronic medium on the date sent by KiZAN representatives.
4.4. PAYMENT OF FEES. In the event of termination or expiration of this Agreement for any reason, KiZAN will be entitled to payment as follows:
4.4.1 PAYMENT OF FEES. For time and expense based services, KiZAN shall be compensated for the hours and expenses incurred through date of termination at the rate contained in the SOW or MSA regardless of whether any deliverable has been completed, plus the agreed upon cost of any purchase order(s) placed prior to the date of termination.
4.4.2 For fixed fee based services. KiZAN shall be compensated for: a) any completed deliverable phases in accordance with the payment terms for such deliverable as stated in the SOW or MSA; and (b) payment for deliverable phases that have not been fully completed will be paid on a pro-rata basis.
4.5. OVERTIME. For time and expense-based services, overtime will be billed at the rate of one and a half times the billing rate(s) listed on the SOW. These overtime rates will apply to hours worked before 7 a.m. and after 6 p.m. during normal work days (i.e. Monday through Friday, excluding holidays), weekends and major federal holidays or as otherwise required by law. Overtime hours must be approved by Client prior to work being performed.
4.6. EXPENSES. Client shall reimburse KiZAN for the following expenses:
4.6.1. Travel time and expenses as stated in Section 4.1 of this Agreement, plus other expenses approved in the SOW or approved in writing in advance by Client that are necessary to perform services required by the Agreement.
4.6.2. Where services are performed at Client designated locations(s) by KiZAN consultants who are not based out of the local KiZAN office, KiZAN will bill for the travel expenses (at cost). Meals and lodging will be billed at a mutually agreed to per diem. KiZAN will perform commercially reasonable efforts to schedule KiZAN consultants from KiZAN offices located nearest the Client’s location(s).
4.6.3. If the Client has not contracted with Microsoft or other vendors for support and it is mutually determined that to resolve a problem vendor support is to be called, the Client will have the option of paying for the support call directly, or being invoiced by KiZAN.
4.6.4. All other expenses resulting directly from performance of services in the Agreement provided Client approves them in advance in writing.
4.7. TAXES. Client shall, in addition to the payments required hereunder, pay all sales, use, transfer or other taxes, whether federal, state or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby; excluding, however, income taxes on profits which may be levied against KiZAN. Client shall reimburse KiZAN for the amount of any such taxes paid or accrued by KiZAN as a result of this transaction.
4.8. DISPUTED AMOUNTS. Client will review the invoices and notify KiZAN in writing within thirty (30) calendar days of receipt (as defined in Section 4.3) of an invoice of any question, objection or dispute the Client may have with such invoice (the "Dispute Notice"). In the event either party provides written notice to the other party of any controversy, claim, dispute, difference or misunderstanding between the parties arising out of or relating to this Agreement or any SOW or MSA, each party will designate managers to meet within 10 days and negotiate in good faith to reach a mutually acceptable resolution. In the event a dispute is not resolved within 30 days following receipt of any Dispute Notice, despite the good faith efforts of the parties, the parties will have the right to submit such dispute to the dispute resolution process set forth in Section 11 (Dispute Resolution).
4.9. PAYMENT DEFAULT. Payment in full for all invoices and billings shall be due within thirty (30) calendar days from the invoice date, at KiZAN’s corporate office. KiZAN reserves the right to charge late fees calculated on an annual percentage rate of fifteen percent (15%) on the amount of the past due balance. If the Client’s account is past due and KiZAN has notified Client in writing of the past due balance, KiZAN may, without advanced notice, immediately cease providing all services without any liability to Client for interruption of pending work.
4.10. COLLECTION. If Client’s account, after default, is referred to an attorney or collection agency for collection, Client shall pay all KiZAN’s expenses incurred in such collection efforts including, but not limited to, court costs and reasonable attorney’s fees.
While performing its duties under this Agreement, KiZAN and its employees may be granted access to certain proprietary and confidential information regarding Client’s business, technology, intellectual property, Clients, and employees. KiZAN agrees to keep such information confidential. KiZAN’s obligation shall not extend to confidential information that KiZAN can demonstrate (a) was in public domain through no fault of KiZAN; (b) becomes generally available to the public other than as a result of disclosure by or on account of KiZAN; (c) was in response to a valid order by a court or other government body, provided Client is given sufficient prior written notice in order to seek a valid protective order from a court of competent jurisdiction; or (d) becomes available to KiZAN on a non-confidential basis from a source other than Client, provided that such source is not bound by a confidentiality agreement with, or other obligation of secrecy to, Client or another party. All the undertakings and obligations relating to confidentiality and non-disclosure, whether contained in this Section or elsewhere in this Agreement, and whether of KiZAN or Client, shall survive the termination of this Agreement.
6. WARRANTY AND INDEMNIFICATION.
6.1. WARRANTY. KiZAN warrants and represents that each of its employees/consultants assigned to perform technical services under any SOW shall have the proper skill, training and background for his/her level of competence as specified in the SOW to be able to perform the service(s) in a competent and professional manner. All services and deliverables will be of the kind and quality designated in the associated SOW and shall, at a minimum, meet generally prevailing professional and industry standards.
6.2. LIMITATION OF LIABILITY. If KiZAN does not fulfill any obligations under this Agreement after reasonable attempt(s), Client’s sole and exclusive remedy is to recover an equitable amount not to exceed charges paid to KiZAN for the services in question. KiZAN shall in no event have any liability for any special, incidental, or consequential damages including but not limited to, loss of profits or revenue, loss of use of equipment, lost data, cost of substitute equipment, services, down time, or claims of Client for such damages, whether the claims be in contract, tort, strict liability, negligence, indemnification or otherwise, even if KiZAN had been advised of such potential damages, and Client shall save and hold KiZAN harmless from any such claims. WARRANTY DISCLAIMER: THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RESPECTING SERVICES PERFORMED OR EQUIPMENT AND MATERIALS FURNISHED UNDER THIS AGREEMENT. In all events not provided for in this Agreement and where permitted by law, KiZAN's liability (regardless of the form of action) will be limited to Client's direct damages in an amount up to the amount of fees paid to KiZAN pursuant to the SOW under which services are being rendered. KiZAN's entire liability and Client's exclusive remedies (including liability for negligence) for performance, non-performance or delays in performance by KiZAN under this Agreement are limited to those contained in this Agreement where permitted by law.
6.3. INDEMNITY. KiZAN shall indemnify, defend, and hold harmless Client, its directors, members, managers, officers, employees, and agents (the “Indemnified Parties”), from any and all damage, loss, claim, demand, suit, liability, penalty and/or fine, or forfeiture of every kind and nature, including but not limited to costs and expenses of defending against the same and payment of any settlement or judgment therefore, by reason of (a) bodily and other personal injuries to or deaths of persons, (b) damages to property, (c) violations of any applicable laws, or (d) infringement of patent, copyright, trademark, trade secret, or other property right, whether suffered directly by Client or indirectly by reason of third party claims, demands, or suits, resulting or alleged to have resulted from acts or omissions of KiZAN, its employees, agents, subcontractors, or other representatives or otherwise from performance of this Agreement. This obligation to indemnify, defend, and hold harmless shall survive termination or expiration of this Agreement. KIZAN will not be obligated to indemnify, hold harmless and defend the Indemnified Parties under this Section 6.3 unless (and only to the extent) the Indemnified Parties (i) provide prompt notice of the commencement of the claim, suit or proceeding for which indemnification is sought, (ii) provide cooperation to KiZAN, and (iii) allow KiZAN to control the defense and settlement; provided, that (1) the Indemnified Parties may, at their option and expense, participate and appear on an equal footing with KiZAN in the claim, suit or proceeding, and (2) KiZAN may not settle a claim, suit or proceeding without approval of the Indemnified Parties, which approval will not be unreasonably withheld or delayed.
7. SOFTWARE LICENSING.
Client agrees that it is the Client's responsibility to maintain legal software licenses for the number of server and workstations using copyrighted software. KiZAN agrees to install software only as directed by the Client.
8. DEVELOPMENT RIGHTS.
KiZAN and Client jointly share all right, title and interest in the source code and object code for any software developed for the Client, and all copies, improvements, enhancements, modifications and derivative works of the software including without limitation all rights to patents, copyrights, trademarks and/or trade secrets. Client acknowledges that KiZAN and Client each own a license to use the developed software, and any derivative works, for Client’s internal use only except as expressly permitted in this Agreement. Further, KiZAN reserves the right to use third party development tools in creating applications. The Client recognizes that KiZAN transfers only the license to run programs developed with these tools and not a license to use the third party tools for additional development. KiZAN will identify the utilities and tools the Client must license for Client to manipulate delivered source code.
9. EXTERNAL USER RESTRICTIONS.
External Users shall not copy, use, modify, distribute, resell, or access the software except as expressly permitted in this Agreement. External Users will not copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to the software to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the software or any trade secret information or process contained in the Software or remove any product identification, copyright or other notices. External Users shall not create any derivative works based on the software unless such derivative works are the subject of a signed agreement between KiZAN and Client. “External User” is an individual who has activated the software made available by the Client who is not currently employed by or contracted by the Client.
10. CLIENT OBLIGATIONS
10.1.GENERAL CLIENT OBLIGATIONS. Client shall provide all commercially reasonable and timely cooperation to KiZAN to enable it to properly provide the Services.
10.2. STAFFING RELATED CLIENT OBLIGATIONS.
10.2.1. Prior the start of any SOW, Client will indicate to KiZAN a person to be point of contact. All communications will be addressed to such point of contact (the “Client Contact”).
10.2.2. Client Contact will provide technical points-of-contact, who have a working knowledge of the enterprise components to be considered during the SOW (“Technical Contacts”). KIZAN may request that meetings be scheduled with Technical Contacts.
10.2.3. Client will designate stakeholders who will work with KiZAN to identify and document acceptance criteria for a successful engagement.
10.2.4. The Client Contact will have the authority to act for Client in all aspects of the engagement; however, any changes that affect the scope of a SOW, schedule or price will require that a Change Request be executed in accordance with Section 1.4. .
10.2.5. The Client Contact shall have the authority to resolve conflicting requirements
10.2.6. The Client Contact will ensure that any communication between Client and KIZAN is made through the designated KiZAN project manager.
10.2.7. The Client Contact will obtain and provide project requirements, information, data, decisions and approvals within one (1) working day of the request, unless both parties agree to a different response time.
10.2.8. The Client Contact will ensure that KIZAN project personnel have reasonable and safe access to the site(s) of services and adequate office space, if required.
10.2.9. The Client Contact will help resolve engagement-related issues and ensure that issues are brought to the attention of the appropriate persons within the Client organization, if required
10.3. Client consents to publication of its name by KiZAN as a Client within presentations, win-wires, on trade show signs, and on KiZAN’s website. KiZAN will seek Client’s prior written authorization for use of Client’s name for promotional activities beyond the above-mentioned, which may include press releases and brochures.
10.4. TECHNOLOGY RELATED CLIENT OBLIGATIONS. Both Client and KiZAN are responsible for the successful execution of each SOW entered into under this Agreement. Client agrees to the following assigned responsibilities:
10.4.1. Client will make the necessary administrative usernames and passwords available to KiZAN employees/consultants. Client will provide detailed and accurate information regarding their current network environment. This information will include the technical configuration of the domain environment.
10.4.2. Client will provide the necessary workspace and suitable network access to provide the services outlined in this document. Required access includes access to all KiZAN resources including but not limited to: MSDN, TechNet blogs and terminal services access to newts.kizan.com port 443, Office 365 and Azure workloads. If the Client is unsure of being able to provide this, KiZAN can assist to determine if any additional access is necessary. Additionally, the Client will provide VPN, RDP, or Citrix (ICA) access to the Client environment as needed. Screen sharing technologies such as LogMeIn are not acceptable access methods.
10.4.3. Client will provide access to building(s) and room(s) as necessary to complete the services contemplated in this Agreement or any SOW/MSA that results.
10.4.4. All hardware and/or software and licensing required to perform the above services will be provided by and is the responsibility of Client. All wiring, hardware, and software required to perform the above services are in working order.
11. DISPUTE RESOLUTION.
KiZAN and the Client recognize that litigation is an expensive, resource-consuming process for resolving business disputes. Therefore, KiZAN and Client agree that if any dispute or breach arises out of or relates to this Agreement, they will attempt in good faith to settle the dispute expeditiously through mediation within 30 days. Both parties will attempt to mutually agree as to the provider of mediation services. If any dispute under this Agreement arises and the parties are unable to resolve such dispute through mediation the unresolved matter shall be resolved through binding arbitration. This dispute resolution procedure will be the parties’ exclusive remedy for resolution of any and all claims the parties may have arising out of or relating to this Agreement; provided, that either party may seek injunctive or provisional relief in a court of competent jurisdiction located in Kentucky in connection with breaches of confidentiality or infringement. Client and KiZAN knowingly and voluntarily agree to waive all rights to resolve such disputes in state or federal court or before any administrative agency or tribunal. Client or KiZAN may request that a claim be submitted to arbitration by serving a written request for arbitration on the other party within sixty (60) days of the action or incident giving rise to the claim. The written request shall identify the nature of the claim and shall specify the provision of this Agreement implicated. Failure to submit a timely request for arbitration will constitute a waiver of the claim. The responding party within thirty (30) days thereafter may request arbitration of any counterclaim. The counterclaim(s) will be adjudicated in the same proceeding. In the event of a request for arbitration, the parties will attempt to agree on an arbitrator, but if they cannot, they will request a list of five (5) arbitrators with prior experience in arbitrating labor and employment and commercial transactions. KiZAN will strike first. Each party will alternatively strike a name from the list until only one name remains. The remaining person will serve as arbitrator. The arbitration will be conducted in Kentucky, under the then applicable Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings under this Agreement. The arbitrator’s decision will be in writing and will set forth the findings of fact, reasoning and conclusion of the issues submitted. The arbitrator will apply applicable law to the facts of any claim raised to determine if the claim has legal merit and if either party is liable under applicable law. The arbitrator will not have the authority or jurisdiction to issue a decision contrary to law or to the terms of this Agreement or to provide for any remedy unavailable as a matter of law for the claim for which the remedy is ordered. Either party may bring an action in any court of competent jurisdiction located in Kentucky to compel arbitration under this Agreement or to enforce an arbitration award. The arbitrator or arbitrators shall award the costs and expenses of the arbitration, including reasonable attorneys’ fees, disbursements, arbitration expenses, arbitrators’ fees and the administrative fees, to the prevailing party as shall be determined by the arbitrator or arbitrators.
12. MISCELLANEOUS PROVISIONS
12.1. Applicable Law. This Agreement shall be governed by and construed according to the laws of the Commonwealth of Kentucky without regard to its conflict-of-laws principles..
12.2. Assignment. Neither party shall assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without obtaining the prior written consent of the other party to this Agreement.
12.3. Captions. The captions and headings of the articles and sections hereof are for the ease of reference only and shall not be used in construing or interpreting this Agreement.
12.4. Controlling Agreement. Where there is a conflict between the terms of this Agreement and the incorporated documents, this Agreement shall control.
12.5. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.
12.6. Microsoft digital partner of record. Customer agrees to assign KiZAN as its Microsoft Digital Partner of Record for the period of this agreement.
12.7. Entire Agreement. Each party acknowledges that it has read this Agreement and agrees to be bound by their respective terms, and further agrees that this Agreement constitutes the complete and exclusive statement of the agreement between the parties which supersedes and merges all other prior proposals, understandings and agreements, oral and written, between the parties relating to the subject matter of this Agreement.
12.8. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform due to causes beyond its reasonable control. Performance times shall be considered extended for a period of time equivalent to the time lost because of any such delay. KiZAN will attempt to meet such extended performance times. If such extended performance times conflict with KiZAN’s pre-existing contractual commitments to other Clients, KiZAN shall so advise Client, and the parties shall use best efforts to agree in writing to an alternative implementation SOW. If the parties are unable to agree upon an alternative implementation schedule, or if the delay continues for a period of three months or more, this Agreement may be terminated by either party and neither party shall be liable to the other for such termination provided Client pays KiZAN for all services rendered and expenses incurred in accordance with the payment provisions herein.
12.9. Independent Contractor Relationship. Client and KiZAN agree and acknowledge that, regarding all matters relating to this Agreement, KiZAN shall be deemed to be an independent contractor and shall bear all of its own expenses in connection with this Agree-ment. All personnel supplied or used by KiZAN in performing its duties under this Agreement shall be employees, agents or sub-contractors of KiZAN and will not be considered employees, agents or sub-contractors of Client for any purpose whatsoever.
12.10. No Solicitation of Other Party’s Employees. Each party recognizes that their employees, and such employees’ loyalty and service to his or her employer, constitute a valuable asset of each party. Accordingly, neither party will encourage or solicit any employee or consultant of the other party to leave the other party’s employment or services, provided that this prohibition shall not apply to any general solicitation not directed exclusively or primarily to individuals providing services to the other party. If either party solicits and hires the other’s employee during the term of this Agreement or within a period of one (1) year thereafter a fee equal to 100% of the employee’s current annual salary will be paid by the hiring party within thirty (30) days of the date of hire.
12.11. Notices. Allnotices, requests, demands and other communica¬tions required or permitted to be given or made under this Agreement shall be in writing and shall be deemed to have been given (a) on the date of personal deliv¬ery or transmission by facsimile trans¬mission, or (b) on the date of (i) deposit in the United States mail, postage prepaid, by registered or certified mail, return receipt requested, or (ii) delivery to a nationally recognized over¬night courier service, in each case, addressed as fol¬lows, or to such other person or entity as either party shall designate by notice to the other in accordance here¬with:
If to KiZAN:
KiZAN Technologies LLC
1831 Williamson Court, Suite K
Louisville, KY 40223
12.12. Partial Invalidity. If any provisions of this Agreement are declared by a court to be invalid under any applicable statute or rule of law, such provisions are, to that extent, deemed omitted, but the remainder of this Agreement shall continue to be binding upon the parties hereto.
12.13. Attorney’s Fees. Should either party be required to bring legal action (including arbitration) to enforce its rights under this Agreement, the prevailing party in such action shall be entitled to recover from the losing party its reasonable attorneys’ fees and costs in addition to any other relief to which it is entitled.