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The parties agree as follows:
1. Period of Performance. This engagement will start on the date of mutual acceptance on the initial order and continues until noted in the termination section of this agreement.
2. Service Fees and Conditions. Client agrees to pay fees for products and services as quoted and approved. Client recognizes ancillary add-on fees and expenses based on work requested by client will not typically result in a formal quote but will be treated in the same manner as an approved quote. Work not quoted under a separate proposal is billed at the currently hourly time and materials rate per hour billed in ¼ hour increments during normal business hours of 8am to 5pm local time. Work performed during the hours of 5pm to 8am, on holidays, or weekends will be billed at 1.5 times the hourly rate. Monthly managed services are subject to a yearly increase of up to 5%. Credits for violation of Service Level Agreement will be applied on request to the bill based on the prorated impact. All work whether quoted under a separate proposal or not is subject to all provisions of this master services agreement.
3. Independent Contractors. FusionTek and Client are independent contracting parties. Nothing herein shall be construed or deemed to create any relationship of joint venture, partnership or’ principal-agent between Client and FusionTek. The rights, duties, obligations, and liabilities of Client and FusionTek are separate and not joint or collective, and it is not the intention of the parties hereto to create under any circumstances a joint venture or partnership or the relationship of master-servant or principal-agent. The parties understand and agree that FusionTek may currently and in the future be performing similar services for other clients. Provided that those services do not directly conflict with FusionTek’s obligations under this Agreement, those services shall not constitute a violation of this Agreement other than as set forth in this Section, nothing in this Agreement shall be construed to restrict FusionTek’s ability to perform similar services or deliverables for others, now or in the future.
4. Intellectual Property. Any writing or work of authorship, regardless of medium, created or developed by FusionTek in the course of performing the Services under this Agreement and relating to any existing works owned by FusionTek shall not be deemed a “work for hire” and shall be owned solely and exclusively by FusionTek. Any work created specifically and uniquely for client will be deemed a “work for hire” and shall be owned by client.
5. Non-Disclosure and Confidentiality. Each party acknowledges that it and its employees or agents may, in the course of this Agreement, be exposed to or acquire information which is proprietary to or confidential to the other party such as data, concepts, knowhow, trade secrets, developments, names and expertise of certain employees and consultants, schematics, specifications, protocols, methods, processes, research results, performance data, customer names and identifying information, customer and product development plans, data and information relating to plans and projections, business methods, business data, and other recorded information, finances, pricing procedures and products, sources of supply, specifications, techniques, contacts and relationships, specifications, and the like, all whether in preliminary or final form, and in and on any media whatsoever, and other information of any nature relating to the use, formulation or function of the consulting services provided hereunder. Each party agrees to hold such information in strict confidence and not to disclose any such information to any third party without express written authorization. Information covering the above categories but developed internally or obtained from third parties is excluded from this.
6. Client Feedback. Client agrees that FusionTek has the unrestricted right to use feedback or recommendations provided by Client in FusionTek’s sole discretion, without notice to, payment to or consent from Client and that such feedback is not subject to the Confidential Information provisions of the Agreement.
7. No Hiring. Throughout the term of the Agreement and for a period of one year after the termination or expiration of this Agreement, Client and FusionTek agree not to employ, solicit, offer employment, or cause alteration or termination of any relationship, either directly or indirectly, to any employee or contractor of the other, without the prior written consent of the other. Any violation of this agreement will result in a liquidated damages penalty of 1.5 times the annualized salary of the employee in question.
8. Limitation of Liability.
A. Disclaimer. Except as expressly stated herein, neither party makes any warranties, express or implied, with respect to its performance hereunder, including implied warranties or merchantability, title and fitness for a particular purpose.
B. Neither party will be liable for incidental, special, punitive, or consequential damages (including, without limitation, lost profits, or lost data) arising out of this agreement. FusionTek’s entire liability to client or any affiliated person or entity arising from this agreement, whether in contract or tort, will not exceed the aggregate amounts paid to it hereunder during the twelve (12) month period immediately preceding the occurrence of the claim giving rise to the liability.
C. No Guarantee. FusionTek does not guarantee a specific outcome or that a cyber incident will not occur.
D. Third Party Warranties. Where applicable, FusionTek agrees to passthrough the terms of third-party warranties for products and services which Client procures through FusionTek.
9. Cyber Insurance and Incident Response
A. Client acknowledges that all software, computer systems, programs, computer-controlled machinery and equipment, or any other digitally controlled systems are vulnerable to, and maybe subject to undesired and/or unauthorized manipulation as a result of cyber incident, hacking, phishing, malware, viruses, and/or equivalent incidents (collectively the “Cyber Incident”).
B. Client acknowledges that Cyber Incidents may result in significant damages including but not limited to software corruption, systems corruption, damages to machinery, tools, equipment, inventory, and other hardware, disruption of business operations, leaks of confidential information, loss of access to assets, and more, all of which may result in significant and unquantifiable monetary losses (collectively, the “Damages”).
C. While FusionTek takes steps to avoid and minimize the risk of Cyber Incidents, and the quantum of Damages, FusionTek cannot guarantee that the Client will not be subject to Cyber Incidents and/or Damages, whether such Cyber Incidents occur whilst the Client is receiving the benefit of the Services, Products, or otherwise.
D. Therefore, FusionTek requires that the Client obtain sufficient cyber security insurance to protect and compensate the Client in the event of Cyber Incidents and/or Damages. Client shall produce evidence of sufficient Cyber Insurance to FusionTek upon request.
E. In the event Client experiences a cyber incident, Client agrees to engage FusionTek as the primary remediation provider related to products and services delivered under this agreement. Incident Response Services will be billed at then-current Incident Response Rate.
10. Minimum Customer Requirements. Clients commits to maintaining all equipment on a currently supported operating system, firmware, and hardware warranty. All work done on equipment outside of these parameters is billed at current hourly rates on a best effort basis.
11. Declined Services. If client chooses to decline services proposed by FusionTek, client commits to doing so in the electronic quoting / digital signature portal. Client recognizes that declining proposed services can increase risk associated with IT operations.
12. Invoice Dispute. In the event Client disputes an Invoice (the “Dispute”), Client shall advise FusionTek within thirty (30) days of the date it receives the disputed Invoice and shall provide reasonable details in writing of the matters in dispute. If FusionTek does not receive notice of a Dispute within thirty days of the date when the Client receives an Invoice, the Invoice shall be deemed to have been accepted and owing by the Client. Any undisputed amounts owing shall continue to be paid by Client to FusionTek while the Dispute is resolved.
13. Indemnification. Each Party to this Agreement (“Indemnifying Party”) shall indemnify and hold the other Party to this Agreement and its officers, directors, shareholders, members, employees and agents (“Indemnified Party”) harmless from any and all claims asserted against the Indemnified Party by any person who is not a Party to this Agreement (and all related liabilities, costs and expenses of any kind whatsoever, including but not limited to attorneys’ fees and court costs), arising out of any material breach under this Agreement by the Indemnifying Party, its agents, employees, or servants of any covenant or condition of this Agreement for negligent or intentional acts or omissions not consistent with this Agreement of the Indemnifying Party, its agents, employees or servants. The obligations herein shall survive termination of this Agreement. This indemnity shall not apply to claims covered by insurance, to the extent of such insurance coverage.
14. Governing Law. This Agreement is to be governed by and construed in accordance with the laws of the State of Washington. Jurisdiction and venue for any action arising under this Agreement is exclusively in the state or federal courts located in King County, Washington. The parties waive any other choice of venue. Any action arising under this Agreement must be brought within six (6) months after its accrual.
15. Force Majeure. FusionTek shall not be held liable for any delay or failure in performance of all or a portion or the Services from any cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of civil or military authority, government regulations, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, power blackouts affecting facilities other than facilities of a kind commonly protected by redundant power systems, unless such redundant power systems are also affected by any Force Majeure condition, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation common carriers.
16. Term and Termination. Either party may terminate specific services for any reason by giving the other party 30 days' written notice. If a committed contract term has been agreed to, client is financially liable for the total value of the contract even if client requests to terminate services sooner. Upon termination of this agreement, the Provider shall deliver to the Client any work products, documents, or materials that have been paid for by the Client, and the Client shall pay the Provider any outstanding Fees and expenses due for the Services performed up to the date of termination. The provisions of this agreement that by their nature are intended to survive the termination of this agreement, such as confidentiality, intellectual property, indemnity, and limitation of liability, shall remain in force after the termination of this agreement.
17. Severability. If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction, the remaining terms and provisions shall be unimpaired and the invalid terms or provisions shall be replaced by such valid terms and provisions that most nearly fulfills the parties’ intention underlying the invalid term or provision.
18. Assignment. Neither party may assign the Agreement, or any of its rights or obligations under the Agreement without the prior written consent of the other party, except that either party may assign the Agreement without the written consent of the other party if such assignment is (i) pursuant to a corporate reorganization; (ii) upon a consolidation, merger, reincorporation, sale of all or substantially all of its assets related to the Agreement; or(iii) a similar transaction or series of transactions. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns. Any assigning party shall notify the other party of any assignment pursuant to these provisions. No third Parties shall have any rights hereunder.
19. Entire Agreement. This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof, and revokes, replaces and ‘supersedes all prior or contemporaneous understandings, communications, or agreements, whether written or oral, regarding such subject matter as of the date of signature. Client recognizes that this agreement can change and agrees to be bound to all future updates to our master services agreement posted at https://www.moxfive.com/moxfive-fusiontek-terms-and-conditions