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Managed IT Master Service Agreement

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ATO MANAGED IT MASTER SERVICES AGREEMENT

20190610Version

This ATO Managed IT Master Services Agreement (this “MSA” or “Agreement”) constitutes a legally binding contract between you (“you” or “Customer”) and Atlantic, Tomorrow’s Office (“Atlantic”). Please read the Agreement carefully. You and Atlantic agree that the Agreement will apply to any Services procured from Atlantic pursuant to Ordering Documents (as defined below). By signing an Ordering Document(s), you agree to the terms of this MSA, which are incorporated by reference into any and all Ordering Documents.

  1. ORDERING PROCESS. “Ordering Documents” – Forms, Proposals or Addenda. Any of the foregoing Ordering Documents may be used to process Customer’s procurement of Services. For the purposes hereof, “Services” means managed IT services provided by Atlantic pursuant to an Ordering Document. Each Ordering Document incorporates terms and conditions specific to the Services covered thereunder, as well as the terms hereof (regardless of whether or not such incorporation is expressly stated on such Ordering Document). Unless otherwise specified therein, Ordering Documents shall become effective upon complete execution thereof. Unless expressly provided otherwise herein or in an Ordering Document, the terms of this Agreement shall prevail in the event of any conflict with the terms of an Ordering Document.
  2. TERM OF AGREEMENT.
    1. This MSA is effective upon complete execution of one or more Ordering Document(s), subject to any express conditions precedent therein, and, except as otherwise specified herein (e.g. surviving terms), will continue unless and until expiration or sooner termination of all Ordering Documents (the “Term”).
    2. Atlantic reserves the right to terminate this Agreement (and/or any or all Ordering Documents) (I) if Customer: (a) becomes the subject of any proceedings under the Bankruptcy Act or other insolvency law, voluntary or involuntary, if such proceeding is not dismissed within thirty (30) days; (b) suffers a receiver to be appointed for its affairs or property; or (c) enters into an assignment, or another arrangement, for the benefit of its creditors, or suffers an attachment against or a seizure of a substantial part of its assets, equipment or its parts and inventories; or (II) at any time, upon 90 days’ written notice, unless otherwise specified in an Ordering Document.
    3. Upon expiration or sooner termination of this MSA:
      1. Customer shall return to Atlantic any and all Atlantic-owned software, hardware or other equipment (“Atlantic Property”), if any, stored, placed or otherwise left at Customer’s site. Should Customer fail to return such Atlantic Property, Customer will be responsible to pay Atlantic the full replacement cost thereof.
      2. Provided Customer is then in compliance with its obligations hereunder, Atlantic will reasonably assist Customer in the orderly transition of services, including timely transfer of the services to another designated provider. Customer agrees to pay Atlantic the costs of rendering such assistance at Atlantic’s then-current hourly rates. Atlantic may request payment in advance based on estimates, subject to reconciliation following completion.
    4. Notwithstanding the foregoing or anything herein to the contrary, unless otherwise expressly provided in an Ordering Document, in the event of any termination of an Ordering Document (other than termination by Atlantic for convenience pursuant to Section 2(b)(II)), Customer will be responsible for its past, current and prospective payment obligations (including, late fees and collection costs) covering the balance of the term of such Ordering Document(s).
  3. FEES & PAYMENT SCHEDULE.
    1. Applicable fees and related provisions are described on Ordering Document(s). Unless otherwise expressly provided in an Ordering Document, Customer hereby agrees to pay all such fees and/or other charges within fifteen (15) days of the invoice date. Atlantic may suspend Services if payment is not received within five (5) days following the due date (*during any such suspension, payment obligations will continue to accrue).
    2. All agreements are reviewed annually and subject to annual price adjustments, which will not to exceed 6% per annum (absent a user count of other scope change).
    3. All rates in Ordering Documents are based upon Services provided during “Normal Business Hours,” defined as Monday – Friday, 7A.M. – 7P.M., Easter Standard Time, excluding federal holidays.
    4. All Out of Scope services performed remotely by Atlantic will be billed at the “Service Addendum Rate” (or “Agreement Rate”) specified in the relevant Ordering Document, subject to the applicable multiplier below, if any, in quarter (1/4) hour increments with a quarter hour (1/4) minimum.
    5. All Out of Scope services performed on-site by Atlantic will be billed at the “Services Addendum Rate” (or “Agreement Rate”) specified in the relevant Ordering Document, subject to the applicable multiplier below, if any, in one (1) hour increments with a two­ (2) hour minimum.
    6. “Rate Multipliers”
Service Hours Surcharges
Normal Monday through Friday, 7:00 AM to 7:00 PM None
Extended Monday through Friday, 7:01 PM to 6:59 AM Agreement Rate x 1.5 (2 hr. minimum)
Weekend Saturdays, Sundays and National Holidays Agreement Rate x 2 (2 hr. minimum)
    1. Atlantic will invoice Customer for additional services or products not specifically included in an Ordering Document (e.g. Additional Services and Out of Scope Services), and Customer shall pay such invoices in accordance herewith.
    2. Customer acknowledges and agrees that, unless a valid tax exemption certificate is submitted to Atlantic, it shall be responsible for the payment of all taxes, levies or other duties based upon or arising from Services, equipment, hardware, software, freight and/or other applicable charges or performance hereunder, including but not limited to all federal, state and local sales and use taxes based on gross revenue, and any taxes or amount in lieu thereof paid or payable by Atlantic in respect of the foregoing.
    3. IT IS UNDERSTOOD THAT ANY AND ALL SERVICES REQUESTED BY CUSTOMER THAT FALL OUTSIDE OF THE SCOPE OF AN EFFECTIVE ORDERING DOCUMENT WILL BE CONSIDERED PROJECTS, AND WILL BE QUOTED AND BILLED AS SEPARATE, INDIVIDUAL SERVICES.
  1. PAST DUE BALANCES/DEFAULTS.
    1. Customer agrees to make timely payment to Atlantic in full, without setoff, deduction or reduction of any kind, for all charges arising hereunder. Payments must be in United States Dollars, and are non-refundable. Should Customer default on any such payment(s), Atlantic may, without notice to Customer, elect one or more of the following remedies (at its sole discretion): (a) withhold performance under this Agreement or any other agreement (during which withholding Customer’s payment obligations shall continue to accrue) until a reasonable time after all defaults have been cured; (b) commence collection activities for all sums due and/or to become due hereunder, including collection costs; (c) accelerate Customer’s payment obligations and terminate this Agreement; and/or (d) pursue any other available remedies at law or in equity. Finance charges in the amount of 1.5% per month will be assessed on all past due balances.
    2. Customer shall reimburse Atlantic for any and all costs, including reasonable attorneys’ fees, agency fees and court costs, incurred to enforce Customer’s payment obligations hereunder.
    3. Atlantic’s rights and remedies herein are cumulative and not exclusive of any other rights and/or remedies available to Atlantic at law, in equity, under statute or otherwise.
  1. CUSTOMER RESPONSIBILITIES.
    1. Customer shall request service in the manner designated by Atlantic.
    2. Customer shall allow Atlantic to implement remote access to its corporate network. Customer hereby consents to Atlantic making any network changes reasonably required to facilitate such remote access.
    3. Customer shall allow Atlantic and its representatives (including technicians, other employees and/or subcontracted technicians), reasonable access to Customer’s premises and facilities, as and where necessary for the performance of Services. Such access shall include, without limitation, ensuring safe access to reasonable parking, office space, lighting, power outlets, connectivity and at least one data transmission line, if applicable (e.g. for troubleshooting and testing communications), when onsite at Customer’s facilities. In addition, Customer will provide Atlantic and its representatives with administrative access to devices and systems on Customer’s network. Such access may include running configurations of network equipment, review of systems and/or security logs and discovery applications on servers (to ascertain configurations). Customer’s failure to provide required access, as and where necessary, and/or to otherwise comply with its obligations hereunder, may, at Atlantic’s reasonable discretion, constitute waiver of any scheduled Services and/or void Agreement coverage until such time as such Services are completed. Additionally, Customer agrees to hold Atlantic harmless from any losses resulting from Customer’s failure to provide such access or to otherwise comply with its obligations hereunder, which includes, without limitation, compensating Atlantic at its prevailing hourly rate for travel, waiting time and/or other unproductive time.
    4. Customer shall allow Atlantic to utilize certain items of Customer’s equipment in the delivery of Services. Customer retains title and ownership in and to all such Customer-owned equipment.
    5. Customer shall designate in writing a Designated Point of Contact for communications and related actions between Atlantic and Customer. Customer will ensure its Designated Point of Contact and other relevant resources are available for periodic status meetings.
    6. Customer shall also designate, and make available to Atlantic, Customer’s personnel who are familiar with covered systems and reported issues, to facilitate provision of Services.
    7. Customer shall at all times comply with any applicable governmental (e.g. federal, state, local, etc.), regulatory agency or other (e.g. executive orders) laws, statutes, rules, ordinances, mandates and/or regulations. For avoidance of doubt, the foregoing compliance includes the procurement, implementation and maintenance of any software, services, applications or systems required for compliance therewith.
    8. Where applicable, at Atlantic’s request, Customer shall make available to Atlantic all existing documentation relating to the systems, network and/or applications currently deployed on Customer’s network that may be affected during the course of performance of Services hereunder.
    9. Customer shall back-up its data (in accordance with prevailing industry best practices) at regular increments (not fewer than once every twenty-four (24) hours).
    10. Except to the extent included in Services under an Ordering Document, Customer shall implement, retain and maintain enterprise-grade, threat-detection software products (e.g. anti-virus, anti-malware and anti-spam) which scan each endpoint at least once every twenty-four (24) hours.
  1. LOANED ATLANTIC PROPERTY. Customer agrees that any Atlantic Property (e.g. equipment, software/technology, etc.) utilized by Atlantic or Customer in connection with this Agreement shall remain the property of Atlantic, and must be returned to Atlantic, unless Atlantic otherwise agrees in writing. Upon expiration or earlier termination of this Agreement, Customer further agrees to cease the use of any Atlantic Property. If, while in Customer’s possession or on Customer’s property, Atlantic Property is stolen, damaged or destroyed, other than from a verifiable natural disaster, Customer must pay the full replacement costs of such Atlantic Property, including shipping and taxes, where applicable.
  1. LIMITATION OF LIABILITY.
    1. EXCEPT AS PROVIDED UNDER THIS AGREEMENT, ATLANTIC MAKES NO REPRESENTATIONS, WARRANTIES OR COVENANTS TO ANY PERSON OR ENTITY WITH REGARD TO ITS PERFORMANCE HEREUNDER, OTHER THAN AS EXPRESSLY SET FORTH HEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW, ATLANTIC DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERRUPTION, NON-INFRINGEMENT, CORRECTNESS AND THOSE ARISING BY STATUTE OR OTHERWISE AT LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. SERVICES PROVIDED ARE ON A COMMERCIALLY REASONABLE EFFORTS BASIS, AND ATLANTIC DOES NOT WARRANT THAT IT WILL BE CAPABLE OF CORRECTING ALL REPORTED ERRORS OR DEFECTS OF COVERED PRODUCTS, SYSTEMS, ETC., OR THAT THE SAME WILL FUNCTION WITHOUT ERRORS. NO AGENT OR EMPLOYEE OF ATLANTIC OTHER THAN ITS GENERAL COUNSEL IS AUTHORIZED TO MAKE ANY EXPANSION, MODIFICATION OR ADDITION TO THIS LIMITATION AND ESCLUSION OF WARRANTIES.
    2. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ATLANTIC OR ITS OFFICERS, DIRECTORS, SUPPLIERS, LICENSORS, AGENTS, ASSIGNEES OR REPRESENTATIVES BE LIABLE TO CUSTOMER UNDER, IN CONNECTION WITH, OR RELATED TO THIS MSA, FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION: LOST PROFITS, SAVINGS OR REVENUE; DIMINUTION OF VALUE; LOSS OF GOODWILL; LOSS OF, DAMAGE TO OR CORRUPTION OF, DATA; OR OTHER LOSS OF SYSTEM USE, REGARDLESS OF THE BASIS FOR RECOVERY ASSERTED, INCLUDING BREACH OF CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY OR OTHER, AND REGARDLESS OF WHETHER CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    3. TO THE FULLEST EXTENT PERMITTED BY LAW, ATLANTIC’S TOTAL CUMULATIVE LIABILITY UNDER, IN CONNECTION WITH OR RELATED TO THIS MSA (INCLUDING, FOR AVOIDANCE OF DOUBT, ANY ORDERING DOCUMENTS HEREUNDER) SHALL NOT, IN ANY EVENT, EXCEED THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO ATLANTIC UNDER THE ORDERING DOCUMENT(S) FROM WHICH THE CLAIM AROSE DURING THE SIX (6) CALENDAR MONTH PERIOD PRECEDING THE DATE OF THE CLAIM.
    4. Atlantic shall not be liable for damages for failure to furnish or interruption of any services, nor shall Atlantic or its agents be responsible for lost data, files or software damage regardless of the cause. Atlantic shall not be liable for damage to property or for injury to any person arising from the installation or removal of equipment unless caused by the sole gross neglect of Atlantic.
  1. EXCLUDED SERVICES. Atlantic’s obligations under this MSA do not include and Atlantic shall not be liable for nor required to perform Services involving, resulting from or otherwise necessitated by: (a) third party products not provided by Atlantic under the relevant Ordering Document; (b) any software that has been altered or modified by anyone other than Atlantic; (c) Client’s network issues or bandwidth limitations; (d) Client’s failure to grant, or delays in granting, any approval, access or other assistance required or requested hereunder; (e) Customer’s improper acts, omissions, negligence, willful misconduct or failure to comply with its obligations: (i) hereunder, (ii) under applicable third party license, (iii) under relevant support agreements and/or (iv) under applicable law; (f) excluding a Backup Appliance (pursuant to a BUDR Ordering Document), Customer’s hardware and software replacement costs and/or any costs associated with Customer’s hardware and/or software replacement; (g) Windows operating systems for which Microsoft has ended extended support and/or deemed End of Life; and/or (h) unless otherwise provided on an Ordering Document, Customer’s Data, including data recovery, repair or restoration.
  1. FORCE MAJEURE. This MSA (and any incorporated Ordering Documents) assumes normal operating conditions. Atlantic shall not be liable in any manner for any delay or default in performance or other damages if such delay, default or damages is caused by conditions beyond its control including, without limitation, acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), delays in suppliers, labor disputes, wars, insurrections, Customer’s acts or omissions and/or any other cause or circumstance which prevents or hinders Atlantic’s performance. Furthermore, any additional services necessitated by damage and/or significant problems that result from acts of god, anomalies and/or abnormal circumstances, such as fire, flood, electrical surges, deliberate malicious acts, theft, acts of God, wars, insurrections, and/or any other cause beyond the reasonable control of either party will be treated as Excluded Services and outside the scope hereof.
  1. NON-SOLICITATION OF EMPLOYEES. Customer acknowledges that Atlantic is involved in a highly strategic and competitive business. Customer further acknowledges that, if Customer were to hire any personnel employed by Atlantic, Customer would gain substantial benefit and that Atlantic would be deprived of such benefit. Accordingly, except as otherwise provided by law, Customer shall not, without the prior written consent of Atlantic, solicit the employment of Atlantic personnel during the term of this Agreement and for a period of one (1) year following the termination or expiration of this Agreement. If an Atlantic employee shall come to work for Customer during said period, Customer agrees to pay Atlantic the sum equal to that employee’s total compensation for the previous twelve (12) months.
  1. Atlantic and Customer recognize that during the course of their relationship hereunder, each Party may have access to the confidential and/or proprietary information of the other concerning respective businesses and operations, including, without limitation, financial and tax information, business plans and development strategy, marketing methodology, technology solutions, pricing, analyses, proposals (collectively, referred to as “Confidential Information”). Atlantic and Customer recognize disclosure of Confidential Information to competitors, unauthorized third parties or the general public would be detrimental. Therefore, both parties covenant and agree: (a) to maintain the confidentiality of the Confidential Information; b) not to disclose the Confidential Information to any person or entity; and (c) not to use the Confidential Information for any purpose except for the purposes of this MSA. Each party will use all reasonable care in handling and securing the other party’s Confidential Information and will employ reasonably comparable security measures as used for its own Confidential Information of similar nature. Notwithstanding the foregoing, the receiving party may disclose Confidential Information: (a) to its employees or contractors who have a need to know and are bound by confidentiality terms no less restrictive than those contained herein, or (b) to the extent required by law following prompt notice of such obligation to the disclosing party and reasonable cooperation to obtain a protective order as and where desirable. Following the termination of this MSA, each party will, upon written request, return or destroy all of the other party’s tangible Confidential Information in its possession and will promptly certify in writing to the other party that it has done so.
  1. INTELLECTUAL PROPERTY. All programing, copyrightable works, writings, drawings, designs, or other works created or developed by Atlantic or its personnel during the performance of this Agreement shall remain the sole and exclusive property of Atlantic.
  1. MISCELLANEOUS.
    1. Entire Agreement. This MSA, including any schedules, exhibits, Ordering Documents and other documents incorporated herein by reference, sets forth the entire understanding of the parties with respect to the subject matter contained herein, superseding and replacing all prior agreements, communications and understandings (written and oral) regarding such subject matter, and is binding upon both parties in accordance with the terms and conditions. There are no understandings, representations, and agreements other than those set forth herein. This Agreement shall not be amended or altered except in writing signed by the authorized representatives of the parties. Terms and conditions on or attached to Customer’s purchase orders will be of no force or effect, even if acknowledged or accepted by Atlantic.
    2. Governing Law. This Agreement shall be governed by and construed according to the laws of the State of New York, exclusive of its rules governing choice of law and conflicts of law and any version of the Uniform Commercial Code. Each party agrees that exclusive venue for all actions hereunder will be in federal or state court of competent jurisdiction located in New York County, New York. Any action relating to this MSA, other than collection of outstanding payments, must be commenced within one year after the date upon which the cause of action accrued. In the event of any dispute, claim, or controversy relating to or arising from this MSA, or any breach, threatened breach, or alleged breach thereof, the Parties hereby expressly waive and relinquish any and all right to a trial by jury on any issue, matter, claim, cause, or controversy pertaining thereto.
    3. Survival of Provisions. Those provisions of this MSA that, by their nature, are intended to survive termination or expiration of this MSA will remain in full force and effect, including, without limitation, the following Sections of this MSA: 2 (c) and (d); 3(a), (g) and (h); 4; 5; 6; 7; 10; 11; 12; 13(a), (b), (c), (d), (e), (g) and (h). Accordingly, termination of this MSA will not adversely affect any right existing as of the effective date of termination. The rights and remedies provided under this MSA are cumulative and in addition to any other rights or remedies available at law and in equity, and any other contract instrument or paper.
    4. No third party beneficiaries. Except as expressly provided herein to the contrary, the provisions of this MSA are solely for the benefit of the parties hereto, and not for the benefit of any other person, persons or legal entities.
    5. Assignment and Subcontracts. Customer shall not assign its rights or delegate its obligations under this MSA (or any Ordering Document hereunder) without the prior written consent of Atlantic. Atlantic may, upon notice to Customer, assign this MSA to any affiliate or to any entity resulting from the transfer of all or substantially all of Atlantic’s assets or capital stock or from any other corporate reorganization or transfer. Atlantic may, without notice, subcontract its obligations under any Ordering Document. This Agreement will be binding upon and inure to the benefit of the parties, their successors and any permitted assignees.
    6. Relationship of Parties. Each party is an independent contractor of the other party. This MSA will not be construed as constituting a relationship of employment, agency, partnership, joint venture or any other form of legal association. Neither party has any power to bind the other party or to assume or to create any obligation or responsibility on behalf of the other party or in the other party’s name.
    7. Construction of Agreement. This MSA will not be presumptively construed for or against either party. Section titles are for convenience only. As used in this MSA, “will” means “shall,” and “include” means “includes without limitation.”
    8. Severability. If any part of a provision of this MSA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the remainder of that provision and all other provisions of this MSA will not be affected.