MASTER CLIENT AGREEMENT STATEMENT OF CONFIDENTIALITY This document contains trade secrets and information that is company sensitive, proprietary, and confidential, the disclosure of which would provide a competitive advantage to others. Therefore, this document shall not be disclosed, used, or duplicated, in whole or in part, for any purpose other than to evaluate the requirements herein.
GENERAL TERMS This Agreement is in effective upon acceptance of the terms of a CENTARIS Quote or Proposal signed electronically or wet signed. Each party Client and CENTARIS hereto warrants and represents that this Agreement constitutes the legal, valid and binding obligation of such party as of the Effective Date.
Copyright © 2022 CENTARIS All rights reserved.
36333 MOUND ROAD, SUITE C, STERLING HEIGHTS, MI 48310
Version 3.2
1.
SCOPE OF AGREEMENT
This Agreement serves as a master agreement and applies to Client's purchases from Managed Services Provider, CENTARIS. Purchases may include hardware, software and licensing of software (collectively, "Product"), and / or professional services including design, implementation, support and maintenance (collectively “Service”). No Product or Service will be provided under this Agreement alone. Execution of an Order form, Statement of Work (SOW), Service Level Agreement (SLA), or other mutually acceptable order document is required. Each will be an Order, which may contain terms of sale, and will be executed by both parties. Upon execution each Order is deemed incorporated into this Agreement for all purposes. Multiple Orders, SOWs, or SLAs may be executed under this Agreement. Each will typically reference this Master Agreement and be effectively attached as a Schedule. In the event of any conflict between the terms of the SOW or SLA and those of this Agreement, the terms of the SOW or SLA will prevail.
2.
TERM AND TERMINATION
This Agreement will begin on the Effective Date and will continue until each Order or SLA expires or is terminated. CENTARIS may: •
•
Terminate a specific Order if Client fails to pay any applicable fees due for that Order within 30 days after receipt of written notice from CENTARIS of nonpayment. Terminate this Agreement or an Order if Client commits any other material breach of this Agreement and fails to cure such breach within 30 days after receipt of written notice from CENTARIS.
Upon any termination of the right to use a Product, Client will immediately uninstall (if the Product is software) and cease to use the terminated Product and, upon CENTARIS' written request, immediately return such Product to CENTARIS, together with all related documentation, and copies thereof. Upon written request of CENTARIS, Client will promptly certify in writing to CENTARIS that all copies of the Product have been returned, and that any copies not returned have been destroyed. If an Order for Services is terminated, Client will promptly pay CENTARIS for Services rendered, and expenses incurred through the termination date. CENTARIS may terminate any license granted for a Deliverable (as defined below) if: •
Client does not pay CENTARIS for that Deliverable in accordance with this Agreement.
•
If Client materially breaches any part of Section 4 of this Agreement.
3.
PAYMENT AND DELIVERY
Client will pay CENTARIS all fees due upon receipt of an invoice specifying the amounts due ("Fees"). All Fees payable under this Agreement are exclusive of sales, use, VAT, customs duties, excise, and any other applicable transaction taxes, which Client will pay (excluding taxes based upon the net income of CENTARIS). If payment is not received on or before any invoice due date, interest shall begin to accrue and be payable at the lesser of the maximum rate permitted under applicable law or at the rate of 1.5% per month from the date due until paid in full. Client shall pay all expenses, including actual attorneys’ fees, incurred by CENTARIS or its representatives in enforcing its rights under this Agreement, provided that CENTARIS is successful on the merits. Client’s obligation to pay undisputed amounts due for Services and CENTARIS’ right to all such amounts are absolute and unconditional. Client is not entitled to setoff of such amounts. All Product is FOB shipping point. All Fees will be detailed in an Order. Unless otherwise stated in a Statement of Work, Client agrees to pay or reimburse CENTARIS for all actual, necessary, and reasonable expenses incurred by CENTARIS in performance of such Statement of Work, which are capable of verification by receipt. CENTARIS will submit invoices to Client for such fees and expenses either upon completion of the Services, or at stated intervals, in accordance with the applicable Statement of Work.
3.1. CENTARIS shall be compensated at the prevailing published service rates for all services provided, regardless of the warranty status of any computer hardware or software. CENTARIS shall be paid in accordance with its Standard Work Role Service Rates, in effect at the time the service is provided. Rate reductions are available through receipt of a specified Prepaid Services Agreement Amount as indicated in the Service Rates Schedule. Consultant / Senior Engineer
$187.50
O365 / SharePoint Developer / Consultant
$165.00
Server / Network Engineer
$165.00
Web Developer / Consultant
$125.00
Voice Services
$129.00
Associate Engineer
$125.00
A Two-Hour Minimum Charge applies to all On-site Data Services; One-Hour Minimum Charge applies to all On-site Voice Services; and Quarter-Hour Minimum Billing applies to all Remote Voice and Help Desk Services. Billing after minimum is in quarter hour increments. Travel Time is billable from CENTARIS’ location to client’s site and back to CENTARIS at $110.00 per hour for Data Services and $67.98 for Voice Services (Minimum 1 hour). After-hours services are
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billed at time and half. Emergency service billing rates are $275.00 per hour for Data Services and $258.00 per hour for Voice Services – two-hour minimum. Holidays services are triple time. Scheduled after-hours services are available at a premium rate – Call for details. Unsupported system utilities, applications and / or operating environments are serviceable and chargeable at CENTARIS’ discretion. In the event the client terminates the agreement for any reason there will be a 20% restocking fee and 5% shipping / handling fee.
4.
PROPRIETARY RIGHTS AND CONFIDENTIALITY
4.1.
PROPRIETARY RIGHTS
CENTARIS, or its Affiliates or licensors, retains all right, title and interest in any and all intellectual property, informational, industrial property and moral rights in the Product, and copies thereof. CENTARIS neither grants nor otherwise transfers any rights of ownership in the Product to Client. The Product is protected by applicable copyright and trade secrets laws, and other forms of intellectual property, informational and industrial property protection.
4.2.
PRODUCT
Client may only use and disclose Product in accordance with the terms of this Agreement and applicable Order. CENTARIS reserves all rights in and to the Product not expressly granted in this Agreement. Client may not disassemble or reverse engineer any software Product or decompile or otherwise attempt to derive any software Product's source code from executable code, except to the extent expressly permitted by applicable law despite this limitation, or provide a third party with the results of any functional evaluation, or benchmarking or performance tests on the Products, without CENTARIS’ prior written approval. Except as expressly authorized in this Agreement or an Order, Client may not: •
Distribute the Product to any third party (whether by rental, lease, sublicense or other transfer); or
•
Operate the Product in an outsourcing or service provider business to process the data of third parties.
Additional usage restrictions may apply to certain third-party files or programs embedded in the Product – applicable installation instructions or release notes will contain the relevant details.
4.3.
SERVICES DELIVERABLES LICENSED UNDER THIS AGREEMENT
License. Subject to the terms of this Agreement, CENTARIS grants Client a perpetual, non-exclusive, non-transferable license to use and modify all programming, documentation,
reports, and any other deliverables provided as part of the Services (“Deliverables”) solely for its own internal use. Pre-Existing License Agreements. Any software product provided to Client by CENTARIS as a reseller for a third party, which is licensed to Client under a separate software license agreement with such third party (such agreement, an “SLA”), will continue to be governed by the SLA. The fulfillment of the Services will not relieve or alter the obligations or responsibilities of either party or of any third party in regards to the software product licensed under the SLA. Ownership. CENTARIS owns all right, title and interest in the Deliverables, including all intellectual property rights embodied therein. Nothing in this Agreement is intended to or will have the effect of vesting in or transferring to Client rights in CENTARIS’ or its affiliates’ or its or their suppliers’ software, methods, know-how or other intellectual property, regardless of whether such intellectual property was created, used or first reduced to practice or tangible form in the course of performance of the Services, whether solely by CENTARIS or jointly with Client.
4.4.
MUTUAL CONFIDENTIALITY
This Section sets out the terms for identification of information which is considered confidential and proprietary by a party (the “Discloser”), and restrictions against use and disclosure of such Confidential Information after disclosure to the other party (the “Recipient”). •
Definition. The term “Confidential Information” means all proprietary or confidential information that is disclosed to the Recipient by the Discloser, and includes, among other things: o
Any and all information relating to products or services provided by a Discloser, its Client-related and financial information, source and executable code, flow charts, drawings, techniques, specifications, development and marketing plans, strategies, forecasts, and sales and marketing materials;
o
The Product; and
o
The terms of this Agreement. Confidential Information does not include information that Recipient can show:
Was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser;
Is or becomes a matter of public knowledge through no fault of Recipient;
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Is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or
Is or was independently developed by or for Recipient.
•
Disclosure Restrictions. Recipient may not disclose Confidential Information of Discloser to any third party without the prior written consent of Discloser.
•
Proprietary Legends. Recipient may not remove, obscure, or alter any proprietary legend relating to the Discloser’s rights on or from any form of Confidential Information of the Discloser, without the prior written consent of the Discloser, except as expressly authorized in an Order.
5.
ALLOCATION OF RISK
5.1.
DISCLAIMER OF DAMAGES
EXCEPT FOR VIOLATIONS OF SECTION 4, NEITHER PARTY, NOR ITS AFFILIATES AND LICENSORS, ARE LIABLE TO THE OTHER PARTY, OR ITS AFFILIATES OR LICENSORS, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PRODUCT (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST COMPUTER USAGE, AND DAMAGE OR LOSS OF USE OF DATA), EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF THE NEGLIGENCE OF EITHER PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
5.2.
LIMITATION OF LIABILITY
EXCEPT FOR VIOLATIONS OF SECTION 4, CENTARIS' LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT IS LIMITED TO THE AMOUNT PAID BY CLIENT TO CENTARIS FOR THE PRODUCT SERVICES OVER THE PRIOR THREE MONTHS.
5.3.
INJUNCTIVE RELIEF
Both parties acknowledge that their violation of Section 4 may cause the other party immediate and irreparable harm. In the event of such breach, the breaching party agrees that the other party may seek, in addition to any and all other remedies available at law, an injunction, specific performance or other appropriate relief.
5.4.
CLIENT RESPONSIBILITIES
Client is responsible for the security of their phone system. In the event of an unauthorized or fraudulent security breach through the phone system (i.e., unauthorized, fraudulent
hacking), the Client accepts all responsibility for charges incurred from their telecom carrier and will not hold CENTARIS liable. To help avoid an IP Communications System security failure Client acknowledges and agrees to utilize proper security measures to prevent fraud by securing voicemail and voicemail boxes with a password upon system installation. CENTARIS recommends changing the default system passwords; and change passwords frequently. In the event the phone system is connected to the Client’s firewall, Client acknowledges and agrees to utilize proper password and restrictions on their firewall to prevent fraudulent security breach (i.e., hacking).
5.5.
CARRIER SERVICES LIABILITY
CENTARIS is not liable or responsible for any carrier outages, carrier circuit failures / outages, router failures, firewall programming issues, customer premise equipment (CPE) issues, customer premise network (CPN) issues, quality of service (QOS) issues delivered by the carrier using VoIP, FXS, PRI or SIP connections
6.
SERVICES-SPECIFIC TERMS
6.1.
ALL NECESSARY RIGHTS
If, as part of CENTARIS’ performance of Services, CENTARIS is required to use, copy or modify any third-party system (hardware, software or other technology) provided or licensed to Client, then prior to CENTARIS’ performance of such Services, Client will acquire all rights necessary for CENTARIS to perform such Services.
6.2.
LIMITED WARRANTY
CENTARIS warrants that the Services performed will be of a quality conforming to generally accepted practices that are standard within the Information Technology services industry for a period of 90 days from completion of the Services under the applicable Statement of Work. Client’s exclusive remedy and CENTARIS’ entire liability under this warranty will be for CENTARIS to re-perform any non-conforming portion of the Services within a reasonable period of time, or if CENTARIS cannot remedy the breach during such time period, then refund the portion of the fee attributable to such nonconforming portion of the Services. This warranty will not apply to the extent Client, its contractors or agents have modified any Deliverable, unless otherwise authorized by CENTARIS in writing. THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
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6.3. •
•
INTELLECTUAL PROPERTY INDEMNITY Infringement Claims. If a third party asserts a claim against Client asserting that the Deliverables and / or CENTARIS’ performance of the Services in accordance with the terms of this Agreement violates a patent, trade secret or copyright (an “Intellectual Property Right”) owned by that third party (“Infringement Claim”), then CENTARIS will, at its own expense: o
Defend or settle the Infringement Claim; and
o
Indemnify Client for any damages finally awarded against Client, but only if Client promptly notifies CENTARIS of any Infringement Claim, CENTARIS retains sole control of the defense of any Infringement Claim and all negotiations for its settlement or compromise, and Client provides all reasonable assistance requested by CENTARIS. CENTARIS will not be liable for any expenses or settlements incurred by Client without CENTARIS' prior written consent.
6.4.
CENTARIS will provide and maintain during its rendition of the Services, but only for losses arising out of CENTARIS’ work for Client:
•
Worker's Compensation and related insurance as prescribed by the law of the state applicable to the employees performing such Services.
•
Employer's liability insurance with limits of at least one million dollars ($1,000,000) for each occurrence.
•
Comprehensive / commercial general liability insurance including products liability with one million dollars ($1,000,000.00) per occurrence combined single limit and two million dollars ($2,000,000.00) general aggregate, including coverage for the use of subcontractors, products liability and completed operations, and not containing an exclusion for explosion, collapse and underground coverage.
•
Comprehensive motor vehicle liability insurance, including coverage for owned, hired, leased, rented and non-owned vehicles of at least one million dollars ($1,000,000) for combined single limit for bodily injury, including death, and / or property damage; and (e) professional liability insurance covering the effects of errors and omissions in the performance of professional duties in the amount of one million dollars ($1,000,000) for each occurrence and in the aggregate associated with Services and (f) cyber liability coverage for data breaches or loss of confidential information in the amount of one million dollars ($1,000,000).
Remedies. If an injunction or order is obtained against CENTARIS performing the Services for Client and / or Client using the Deliverables by reason of the allegations of infringement, or if in CENTARIS’ opinion the Services and / or Deliverables may violate a third party's proprietary rights, then CENTARIS will, at its expense: o
Procure for Client the right to continue to receive the Services and / or use the Deliverables;
o
Modify or replace the Services and / or Deliverables with a compatible, functionally equivalent substitute; or
o If neither:
Nor; and
Are commercially practical, terminate this Agreement and release Client from its obligation to make future payments for the Services and / or Deliverables. Sections 5.1 and 5.2 contain Client's exclusive remedies and CENTARIS' sole liability for claims of infringement.
INSURANCE
6.5.
INDEPENDENT CONTRACTOR
Nothing in this Agreement will be construed to make either party an employer, employee, agent or partner of the other, and this Agreement will not be construed to create rights, express or implied, on behalf of or for the use of any party other than CENTARIS and Client. All of the Services performed by CENTARIS will be performed as an independent contractor. CENTARIS will perform such Services under the general direction of Client, but CENTARIS will have sole discretion to determine the manner, method and means of performing such Services subject to the provisions of this Agreement and applicable Statement of Work. Neither party will have any authority to make any contract in the name of or otherwise to bind the other party. CENTARIS will be responsible for and will pay all unemployment, social security and other payroll taxes, and all worker's compensation claims, worker's compensation insurance premiums and other insurance premiums, with respect to CENTARIS and CENTARIS' employees.
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6.6.
MUTUAL NON-SOLICITATION
While this agreement is in force, and for a period of one year after the termination of this agreement, neither party will solicit for employment, employ, or otherwise engage the services of, any person employed by or acting on behalf of the other party, without the prior written permission of the other party. Similarly, any person employed by either party during the term of this contract, who then is terminated, resigns or quits, should not be hired or otherwise engaged for employment, or for delivery of service through any third-party business to whom terminated employee subsequently engages or associates with, by the other party for a period of one year, without the other party’s prior written consent. The parties acknowledge and agree that a breach of this “Non-Solicitation” clause will not give rise to a right of termination of this Agreement; the party not in breach will only have the right to seek and recover direct damages from the breaching party. CENTARIS shall be paid the amount of $150,000.00 or double their salary whichever is higher for each employee or former employee of CENTARIS hired as an employee or engaged as an independent contractor by Client within two years of the termination of employment with CENTARIS.
6.7.
MUTUAL INDEMNITY
Each party will indemnify, defend and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Clients premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
7.
MISCELLANEOUS / OTHER PROVISIONS
7.1.
SEVERABILITY
Should any provision of this Agreement be invalid, or unenforceable, the remainder of the provisions will remain in effect. In the event of a dispute, the prevailing party in any litigation or arbitration will be entitled to recover its attorneys’ fees and cost incurred from the other party.
7.2.
NOTICES
Unless otherwise provided, notices to either party will be in writing to the address indicated above, or as later amended, and deemed effective when received.
7.3.
VERIFICATION
Upon CENTARIS’ written request, Client will provide CENTARIS with a certification signed by an officer of Client verifying that Product is being used pursuant to the terms of this Agreement, including without limitation the licensed capacity of the Product. CENTARIS may, at its expense, audit Client's use of Product to confirm Client’s compliance with this Agreement. Any such audit will be conducted during regular business hours at Client’s facilities and will not unreasonably interfere with Client’s business activities. If an audit reveals that Client has underpaid Fees to CENTARIS, Client will pay such underpaid Fees. If the underpaid Fees exceed 5% of the Fees paid, then Client will also pay CENTARIS’ reasonable costs of conducting the audit.
7.4.
ASSIGNMENT
Client may not assign this Agreement, or any rights granted in this Agreement to any third party, except with the prior written consent of CENTARIS. CENTARIS reserves all rights for assignment of this Agreement.
7.5.
NO WAIVERS
Failure of a party to require performance by the other party under this Agreement will not affect the right of such party to require performance in the future. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach.
7.6.
FORCE MAJEURE
Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement. This provision does not apply to the payment of monies or any breach of Section 4.
7.7.
INDEPENDENT CONTRACTORS
The parties are independent contractors of each other, and no partnership or joint venture is intended or created by this Agreement.
7.8.
ENTIRE AGREEMENT
This Agreement, together with each Statement of Work, SLA and Order, constitutes the entire agreement between Client and CENTARIS, and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written, concerning this subject matter. This Agreement, and each Statement of Work, SLA and Order, may be modified only in a mutually signed writing between Client and CENTARIS. In the event of a conflict between this
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Agreement, and any Statement of Work, SLA or an Order, the terms of the Order will control, followed, in order by the terms of the applicable SLA, Statement of Work and then this Agreement.
7.9.
This agreement may only be modified by an Officer of CENTARIS.
EXPORT CONTROLS
Client will cooperate with CENTARIS as reasonably necessary to permit CENTARIS to comply with the laws and regulations of the United States and all other relevant countries, relating to the control of exports (“Export Laws”). Client may not import, nor export or re-export directly or indirectly, including via remote access, any part of the Product into or to any country for which a validated license is required for such import, export or re- export under applicable Export Laws, without first obtaining such a validated license.
7.10.
7.13.
This Agreement is in effective upon acceptance of the terms of a CENTARIS Quote or Proposal signed electronically or wet signed. Each party hereto warrants and represents that this Agreement constitutes the legal, valid and binding obligation of such party as of the Effective Date.
REFERENCING
Client agrees that CENTARIS and its Affiliates may refer to Client as a Client of CENTARIS, both internally and in externally published media. Client also agrees to instruct appropriate personnel within its organization that Client has agreed to receive and participate in calls, from time to time, with potential Clients of CENTARIS who wish to evaluate the technical specifications of Product.
7.11.
DISPUTE RESOLUTION AND GOVERNING LAW
ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THE PRODUCT AND / OR THIS AGREEMENT WILL BE SUBJECT TO ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES. THE AWARD AND ANY FINDINGS OF THE ARBITRATOR MUST BE FILED WITHIN 30 DAYS OF THE FINAL ARBITRATION HEARING. JUDGMENT ON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. NOTHING CONTAINED IN THIS SECTION WILL LIMIT EITHER PARTY’S ABILITY TO SEEK INJUNCTIVE RELIEF IN ANY COURT. THE PARTIES WILL ARBITRATE DISPUTES IN CONFIDENCE. THIS AGREEMENT WILL BE GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF MICHIGAN. THE CHOICE OF LAW RULES OF ANY JURISDICTION AND THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY.
7.12.
SURVIVAL
Sections 2, 4, 5, 6 and 7 will survive the termination or expiration of this Agreement. The prevailing party in any litigation or arbitration proceeding is entitled to recover from the other party, its reasonable attorneys’ fees and necessary costs incurred in such proceeding.
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