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HomeMy WebLinkAbout2017-28022017 -2802 This master service agreement ( "Agreement") is made and entered into this day of Y ° l 2o17—("Effective Date") i t L between Works Computing, inc. ( "Works Computing ") and LT Gp UC &A3. ( "Client"), Contractor and Client are also referred to as "party" and collectively as the "parties ". Subject to and In consideration 9f the mutual promises, conditions, and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. APPROVED VENDOR, Upon execution of this Agreement and compliance with its terms, Client agrees that Works Computing shall be added to Client's list of approved vendors. 2. CONSULTING SERVICES AND DELIVERABLES a) WORKS COMPUTING Consulting Services. WORKS COMPUTING, INC. will provide (to Client) the services of a consulting nature (the "Consulting Services ") and the work product (the "Deliverables") described in the proposal and/or statement of work to which these Terms and Conditions are attached (jointly the "Statement of Work "). The Consulting Services will be based, in whole or in part, upon information made available by Client to WORKS COMPUTING during this engagement. b) Quoted Amount. The quoted amount is based on WORKS COMPUTING, INC,'S current understanding of Client's requirements. If Client's requirements change or WORKS COMPUTING, INC.'S understanding proves Insufficient, WORKS COMPUTING, INC, reserve the right to revise the Quoted Amount. C) Acceptance. Acceptance of Consulting Services and Deliverables will occur upon WORKS COMPUTING, INC,'s performance of the Consulting Services and delivery of the Deliverables to Client as specified In the Statement of Work. Acceptance or use of Consulting Services and Deliverables shall not affect WORKS COMPUTING, INC.'s obligation under the warranties set forth in Section S, and such warranties shall survive acceptance and use. d) Standard Business Hours. Standard business hours are defined as Monday through Friday 8:00 AM to 5:00 PM, excluding Holidays. e) Service Rates. Rates for services delivered outside of Standard business hours will be: 1. After -Hours and Weekend Rate will be one and a half times (1.5x) the rate listed on the proposal and /or Statement of Work IL Holiday Rate will be two times (2x) the rate listed on the proposal and/or Statement of Work f) Billable Increments. All services will be billed In half hour increments, in addition, a minimum of four (4) hours is required for all onsite work and two (2) hours is required for all remote work. g) Billable Travel Time. Travel time (to and from) customer site(s) that are located more than 50 miles from the Works office will be billed at $90 per hour plus mileage at $0.56 per mile. Should a resource from our Bloomington Office be required to perform the work for a Duluth Area Client, Travel Time and expenses will be billed to the Client as called out in the proposal and /or Statement of Work. h) Expenses. if overnight stay Is required, the following list of expenses will be added to the Quoted Amount and billed to the Client: airfare, lodging, rental car, airport taxi, gas refill for rental car, meals, and luggage fees. 1) Scheduling. Client and WORKS COMPUTING, INC. will mutually agree to a delivery schedule for services. If the delivery schedule needs to be changed, WORKS COMPUTING, INC. requires a 48 -hour notice. Without such notice, Client will be charged cancellation fees of $500 for onsite work and $250 for remote work. Rescheduling of service delivery will be made on a best effort basis. j) Pre - requisites. Client is expected to have all prerequisites completed prior to first scheduled work date. If Pre - requisites are not completed by the first scheduled work date, Client agrees to pay for all additional labor necessary to complete Pre - requisites, k) statement of Work. All Statements of work provided by WORKS COMPUTING, INC will be valid for a period of 30 days from the Issuance date. Should Client approve an expired Statement of Work, WORKS COMPUTING, INC reserves the right to revise the Quoted Amount, 1) Retainer Purchase, All Retainer purchases will expire 365 days from purchase date. The purchase date will be determined by either the date listed on Clients Purchase Order document or the signature date listed on the Statement of Work, whichever comes first. Funds assaclated with a Retainer Purchase may not be transferred or applied towards the purchase of Hardware and/or Software. m) Block Purchase. All Block purchases will expire 3365 days from purchase date. The purchase date will be determined by either the date listed on Client's Purchase Order document or the signature date listed on the Statement of Work, whichever comes first. n) Project Management. Statements of Work issued by Works Computing does not automatically include Project Management time. If Client desires Project Management to be included as part of a Statement of Work, Client should indicate this desire during the scoping phase of the project. D) Prices. The attached Rate Addendum reflects the prices associated with this Master Service Agreement. 1801 E. American Blvd, Suite 12, Bloomington, MN 55425 1 PH. (952) 746 -1580 FX: (952) 746 -1585 1 www.workscomouting.com 3. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY a) Intellectual Property Rights. Neither party will gain by virtue of these Terms and conditions (the "Terms ") any rights of ownership of copyrights, patents, trade secrets, trademarks or any other intellectual property rights owned by the other. b) Confidentiality. WORKS COMPUTING, INC. recognizes and acknowledges that Client's trade secrets and confidential or proprietary information, including such trade secrets or information as may exist from time to time, are valuable, special and unique assets of Client's business, access to and knowledge of which are essential to the performance of the duties of WORKS COMPUTING, INC. hereunder, WORKS COMPUTING, INC. will not, during or after the term hereof, in whole or In part, disclose such secrets or confidential or proprietary information to any person, firm, corporation, association or other entity for any reason or purpose whatsoever, except as required by law, nor shall WORKS COMPUTING, INC. make use of any such property for its own purposes or for the benefits of any person, firm, corporation, or other entity (except client) under any circumstances, during or after the term hereof, provided that after the term hereof these restrictions shall not apply to such secrets or Information which are then in the public domain (provided that WORKS COMPUTING, INC. was not responsible, directly or indirectly, for such secrets or information entering the public domain without C6enYs consent). c) Associated Products or Services. Ownership of patents, logos, rights to advertisement of any manufacturer's product, service or copyrighted or licensed software supplied by WORKS COMPUTING, INC. will not be transferred in any way to Client under performance of services. No permission is granted to market associated products or services without the express permission of the Owner of such Product or Service. 4. PAYMENTS a) Fees and Taxes. Client will pay to WORKS COMPUTING, INC. the fees specified in the Statement of Work. in addition, Client will reimburse WORKS COMPUTING, INC. for any out of pocket expenses reasonably incurred by WORKS COMPUTING, INC, in connection with the performance of the services, including travel and travel - related expenses, unless otherwise stated in the Statement of Work. Prices do not include sales, use, service, value added or like taxes or customs duties. Such taxes and duties, when applicable, will be added to WORKS COMPUTING, INC.`s invoices. b) Payment Terms, All payments will be made within days of the invoice date. These credit terms are Subject to WORKS COMPUTING Credit approval. WORKS COMPUTING may change credit terms upon reasonable notice at any time when, in WORKS COMPUTING, INC.'s opinion, Clients financial Condition, previous payment record, or the nature of Client's relationship with WORKS COMPUTING, INC. so warrants. c) Time of Payment, if Client fails to pay, when due, any undisputed amount payable hereunder, Client agrees to pay, In addition to any amount past due, interest accrued thereon at the lesser of one percent (1 %) per month or the maximum allowable interest under applicable law from the due date, until paid in full. if Client disputes and invoice or any part of an invoice, it shall do so In writing within 10 days of the invoice date. Client agrees to pay all reasonable expenses (including reasonable attorneys' fees) incurred by WORKS COMPUTING, INC, in collecting any undisputed amounts payable hereunder. d) Cancellation Fees. If Client falls to provide WORKS COMPUTING, INC. cancellation notice at least forty -eight (48) hours prior to project start date, Client agrees to pay a Cancellation Fee equal to $SOD for onsite work and $250 for remote work. 5. WARRANTIES AND DISCLAIMER OF WARRANTIES a) Warranty. WORKS COMPUTING, INC, warrants that it will perform its services in a workmanlike manner and consistent with generally recognized commercial practices and standards and all applicable federal and state laws and regulations. b) Third Party Hardware, Software, and Other Materials, WORKS COMPUTING, INC. will have no liability to Client arising from or relating to and does not warrant any hardware, software or materials supplied under another agreement or by third parties ( "Third Party Materials "), including, but not limited to, the selection thereof or failure of such Third Party Materials to perform in accordance with specifications or any defects therein. Responsibility for the selection of Third Party Materials, and any performance or functionality issues, or defects therein, will lie solely with Client and /or the supplier(s) thereof. c) Warranty Disclaimer. THE WARRANTY CONTAINED IN SECTION 5 IS IN LIEU OF AND WORKS COMPUTING EXPRESSLY DISCLAIMS, AND CLIENT HEREBY EXPRESSLY WAIVE5, ALL OTHER EXPRESS WARRANTIES OR CONDITIONS, AND ALL OTHER WARRANTIES, CONDITIONS, AND OBLIGATIONS IMPLIED IN LAW, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, 6. REMEDIES AND LIABILITIES a) Liability and Limits, WORKS COMPUTING, INC.'S AGGREGATE LIABILITY TO CLIENT FOR ANY REASON AND UPON ALL CLAIMS AND CAUSES OF ACTION HEREUNDER WILL BE LIMITED TO THE AMOUNT OF FEES PAID BY CLIENT FOR THE CONSULTING SERVICES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORTS. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF DATA, LOSS OF PROFITS OR LOSS OF SAVINGS OR REVENUE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Rev. 2017,01.03 Professional Services Master Service Agreement Page 2 of S b) Timeliness of Action. in no event will any action be brought against WORKS COMPUTING, INC, more than (6) six months after the cause of action has accrued or 6 (six) months after the termination of this agreement or completion of all aspects of the Statement of Work. C) Allocation of Risk, The parties understand and agree that, to the extent permitted by applicable law, the foregoing exclusions and limitations of liability represent the parties' agreement as to allocation of risk between them in connection with their respective obligations under these Terms. The fees payable to WORKS COMPUTING, INC, reflect, and are set In reliance upon, this allocation of risk and the exclusions and limitations of liability set forth in these Terms, 7. TERM AND TERMINATION a) Term, The Terms will remain in effect for 355 days based on the signature and acceptance date below unless terminated earlier In accordance with the provisions set forth below. b) Termination for Cause or insolvency, These Terms and the attached Statement of Work may be terminated Immediately upon written notice: 1)8y either party, if the other party is in material breach of any of Its obligations hereunder and fails to remedy such breach within 15 days of receipt of a written notice by the other party which specifies the material breach, 2) By WORKS COMPUTING, INC., if Client falls to pay any amount due WORKS COMPUTING, INC. hereunder and does not cure such default within ten (10) days of the date payment Is due. WORKS COMPUTING, INC. may suspend performance of Consulting Services during the cure period without prejudice to its right to terminate hereunder; 3) By either party, if a receiver, liquidator or trustee of the other party Is appointed by court order or receivership, insolvency or bankruptcy proceedings are commenced or a petition Is filed by or against the other party under any applicable liquidation, conservatorship, bankruptcy, moratorium, insolvency, reorganization or similar laws or the other party makes an assignment for the benefit of its creditors, admits in writing its inability to pay its debts generally as they become or otherwise takes any action or causes any action to be taken which the other party reasonably believes will cause the acting party to be unable to perform its financial obligations under these Terms, Rights After Termination, Upon termination of these Terms, Client will pay WORKS COMPUTING, INC, for all Consulting Services performed and charges and expenses incurred by WORKS COMPUTING, INC. up to the date of termination, and Client will receive all work In progress for which Client has paid. 8. MISCELLANEOUS 3) Dependencies. Client will comply with the general obligations specified In these Terms together with any specific Client obligations described in the Statement of Work, In a timely manner. Client acknowledges that WORKS COMPUTING, INC.'s abllity to deliver the Consulting Services is dependent upon Client's full and timely cooperation with WORKS COMPUTING, INC., as well as the accuracy and completeness of any Information and data Client provides to WORKS COMPUTING, INC. r) Similar Services. Nothing in these Terms will prohibit WORKS COMPUTING, INC, from providing Consulting Services similar to those provided hereunder to other Clients. Hiring of Employees. Each party agrees not to solicit, or make offers of employment to or enter into consultant relationships with, employees or consultants of the other party If such person was Involved, directly or indirectly, in the performance of the Consulting Services governed by these Terms; provided, however, that nothing contained herein will prevent a party from hiring any such employee or consultant who responds to a general hiring program conducted in the ordinary course of business or who approaches such party on a wholly unsolicited basis. Should Client make an offer of employment to a WORKS COMPUTING, INC: s employee at any point during or following the performance of the Consulting Services governed by these Terms and such offer of employment has been accepted by the employee, Client agrees to pay WORKS COMPUTING, INC. a finder's fee In the amount of $30,000. I Export Regulation. Client will comply with all applicable export laws. No Publicity. Neither party will publicize or disclose to any third party without the consent of the other party, either the price or other provisions of these Terms nor the fact of its existence and execution, except as may be necessary to comply with other obligations stated in these Terms or the Statement of Work or required by law. Notwithstanding the foregoing, WORKS COMPUTING, INC, may use Client's name and Identify this engagement in connection with general lists of clients and experience. Independent Contractor, Works Computing Is an independent contractor of Client under the terms of this Agreement. Nothing contained in these Terms will be construed as creating a joint venture, partnership or employment relationship between the parties hereto, nor will either party have the right, power or authority to create any obligation or duty, express or Implied, on behalf of the other. WORKS COMPUTING, INC. will not be responsible to perform any regulatory or contractual obligation of Client and does not assume any responsibility for Client's business operations, Taxes. Each party is solely responsible for any taxes that become due and payable by that party as a result of the products or services provided or accepted under this Agreement, No Assignment. Except with respect to WORKS COMPUTING, INC's rights regarding the use of subcontractors, neither party may assign any rights or obligations under these Terms or any Statement of Work without the prior written consent of the other parry, provided however that WORKS COMPUTING, INC, may assign its rights and obligations hereunder to an aff slated entity at any time upon written notice to Client, This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Rev. 2017.01.03 Professional Services Master Service Agreement Page 3 of S i) force Majeure. Neither party will be liable for performance delays or for non - performance due to causes beyond its reasonable control. J) Notices. Any notice provided pursuant to these Terms, if specified to be in writing, will be in writing and will be deemed given-. (a) if by hand delivery, upon receipt thereof, (b) if mailed, three (3) days after deposit in the mail of the Country where sender is located, postage prepaid, certified mail return receipt requested; (c) If by next day delivery service, upon such delivery•, or (d) if by facsimile transmission or electronic mail, upon confirmation of receipt. k) Waiver. Neither party's failure to exercise any of its rights under these Terms will constitute or be deemed a waiver or forfeiture of those rights. I) Severability. if any term or provision of these Terms is held to be illegal or unenforceable, the validity or enforceability of the remainder of these Terms will not be affected. 1) Precedence, in the event of conflict between the provisions of these Terms and any attached exhibit or Statement of Work, the provisions of these Terms will to the extent of such conflict take precedence unless the Statement of Work expressly states that it is amending these Terms. 2) Entire Agreement. These Terms and Conditions, the Service Policies, and the Statement of Work to which they are attached Constitute the entire agreement between WORKS COMPUTING, INC, and Client and supersede any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written, regarding the subject matter of these Terms. Client's additional or different terms and conditions will not apply. These Terms may not be changed except by an amendment signed by an authorized representative of each party. 3) Survival of Provisions. Sections 3, 4, 5 and 6 of these Terms and Conditions, and all provisions of these Terms relating to proprietary rights, confidentiality, non - disclosure, and non - solicitation will survive the completion to the Consulting Services or any termination of these Terms. 4) Applicable law. These Terms are made under and will be construed in accordance with the laws of the State of Minnesota without giving effect to that state's choice of law rules. All litigation will be held in Hennepin County, Minnesota. 9. CUSTOMER ACCEPTANCE OF MASTER SERVICE AGREEMENT Client: Signature: Name: Title: U Date: ( f C T PO or Reference No: Works: r) Signature: Name: k$!ui tti. i y Date. yx. ,u~ ` M PO or Reference No: Rev. 2017MAB Professional services Master Service Agreement Page 4 of 5� . • +' i Works Computing will provide the following monitored methods for support requests: • Works Computing general support E -mail address: Suoport@WorksComputine.com • Works Computing Client Portal o Client may generate support requests directly through our Client Portal The following is a list of responsibilities the Works Computing Support Team is expected to perform as part of this Agreement: • Respond to support requests • Provide or develop remediation solution for support requests • Post - support review with client for majorservice disruptions • Track all support requests and provide reports as necessary Under this Agreement, client will be able to engage Works Computing resources per the following Price Schedule: Discounted Rates for State /total Government and Education Cilents Weekday After Hours/ Holiday Resource Category Rate Weekend Rate Rate Field Project Manager $100.00 $150.00 $200.00 Field Network Engineer $160.00 $240.00 $320.00 Field Storage Engineer $160.00 $240.00 $320.00 Field Server Engineer $160,00 $240,00 $320,00 Field Vrtualization Engineer $160.00 $240.00 $320.00 Senior Project Manager $130.00 $195.00 $260.00 Senior Network Engineer $180.00 $270.00 $360.00 Senior Storage Engineer $180.00 $270.00 $360.00 Senior Server Engineer $180.00 $270.00 $360.00 Senior Vrtualization Engineer $180.00 $270.00 $360.00 Software Defined Converged Solutions Engineer $200.00 $300.00 $400.00 Solutions Consultant 1 $200.00 $300.00 $400.00 Professional Services Purchase Discounts Purchase Amounts'* �» Discount Rate All purchases of $25,000 + 5% All purchases of $50,000 + 10% All purchases of $100,000 + 15% *"* all Block /Retainer Purchases will expire 365 days from purchase date Rev. 2017,01.03 Professional Services Master Service Agreement Page 5 of 5