Master Services Agreement

This Master Services Agreement (“MSA”) governs your use of our services.

By executing a Services Agreement with Summit IT that references this MSA, Client (sometimes referred to as “You” or “Your”) agrees to the terms of this MSA. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “You” or “Your” refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with these terms and conditions, You must not accept this Agreement.

Summit IT and Client agree as follows:

1. SCOPE OF SERVICES

Client desires to retain Summit IT to provide services, and Summit IT is willing to perform such services under the terms and conditions set forth in the Agreement.

This MSA is accepted in conjunction with one or more Services Agreements together to comprise the Agreement. This MSA remains in effect as long as Client has at least one Services Agreement in effect with Summit IT.

2. EXCLUDED SERVICES

This Agreement only applies to the services as defined in the Services Agreement and does not include additional unstated services that may be requested by Client. Additional services can be provided by Summit IT to Client at a mutually agreed upon rate and will be billed separately. Addition services are not covered by this Agreement unless they are specifically described in an executed Services Agreement.

3. TERM & TERMINATION

If not otherwise specified in the Services Agreement, a Managed Services Agreement automatically renews for a subsequent one (1) year term beginning on the day immediately following the end of the Initial Term, unless either party gives the other (30) days prior written notice of its intent not to renew this Agreement.

1. This Agreement may be terminated by either party upon (30) days written notice if the other party:
2. Fails to fulfill in any material respect its obligations under this Agreement and does not cure such failure within thirty (30) days of receipt of such written notice.
3. Breaches any material term or condition of this Agreement and fails to remedy such breach within (30) days of receipt of such written notice.
4. Terminates or suspends its business operations, unless it is succeeded by a permitted assignee under this Agreement.
5. If either party terminates this Agreement, Summit IT will assist Client in the orderly termination of services. Client agrees to pay Summit IT for services associated with rendering such assistance. The cost to Client for these services will not exceed 15% of the final months’ total monthly investment as defined in the Fee and Payment Schedule in the Services Agreement.

Either party may, upon giving thirty (30) days written notice identifying specifically the basis for such notice, terminate this agreement for breach of a material term or condition of this agreement, provided the breaching party has not cured such breach within the thirty (30) day period. In the event of such termination, Client shall pay Summit IT for all services rendered and expenses incurred prior to the date of termination.

4. SERVICE LEVELS

4.1 RESPONSE TIMES. For a Managed Services contract, the following table defines the targets of response times for each priority level.

Issue	Priority	Response Time During Business Hours
Business critical functions unavailable	1 – Emergency	Within 2 hours
Individual critical functions unavailable	2 – Urgent	Within 4 hours
Limited degradation of service or standard administrative services	3 – Normal	Within 24 hours
Small service degradation or minor administrative Services	4 – Low	Within 48 hours

4.2 SUPPORT LEVELS. For a Managed Services contract, the following table defines Summit IT’s support levels:

Support Level	Description
Level 1 Support	All support requests begin in Level 1, where the initial ticket is created and the issue is defined and clearly documented.  Basic hardware/software troubleshooting is initiated when required.
Level 2 Support	All support requests that are not be resolved with Level 1 Support are escalated to Level 2, where more complex support on hardware/software issues is provided
Level 3 Support	Support requests that are not resolved by Level 2 Support are escalated to Level 3, where Summit IT collaborates with third Party (Vendor) Support Engineers to resolve the most complex issues.

4.3 SERVICE COVERAGE. For a Managed Services contract, the following applies:

• Remote helpdesk and vendor management of Client’s IT network will be provided to the Client by Summit IT through remote means during its hours of operation which are 8:00 am – 5:00 pm EST Monday through Friday, excluding holidays which are listed on Summit IT’s website www.summititsolutions.com. Network monitoring services will be provided 24x7x365. All services qualifying under these conditions, as well as services that fall outside this scope will fall under the provisions of the Services Agreement.
• Summit IT will respond to Client’s service requests under the provisions of the Services Agreement. Service requests must be opened by Client’s designated I.T. contact person(s) via the Client access portal, by sending an email support request to support@summititsolutions.com, or by phone to the help desk. Each service request will be assigned a number for tracking.
• Emergency services performed outside of the hours of 8:00 am – 5:00 pm EST Monday through Friday and holidays which are listed on Summit IT’s website www.summititsolutions.com, will be subject to provisions of the Services Agreement.
• This Agreement does not include professional services related to network or hardware upgrades. Summit IT will provide Client with a cost estimate for the required hardware and professional services for these projects. These professional services fall outside the scope of a Managed Services Agreement and are considered Project Services work.
• Summit IT will provide support for the hardware and systems specified in the Services Agreement, provided that the hardware is covered under a currently active vendor support contract or replaceable parts are readily available, and all software be genuine, currently licensed and vendor supported. Should any hardware or systems fail to meet these provisions, they will be excluded from this Agreement. Should third party vendor support charges be required in order to resolve any issues, these charges will be passed on to Client after first receiving Client’s written authorization to incur them.
• Summit IT will provide ongoing monitoring and security services of the critical devices as indicated in the Services Agreement. Summit IT will provide reporting upon request as well as document critical alerts, scans and event resolutions to Client. Should a problem be discovered during monitoring, Summit IT will make every attempt to rectify the condition in a timely manner through remote means.

4.4 SUPPORT REQUESTS & HOURS OF OPERATION. Support requests will be handled and invoiced as outlined in the applicable Services Agreement. Summit IT’s typical business hours are Monday through Friday 8:00 am to 5:00 pm Eastern Time.

Summit IT offices are typically closed for the following holiday schedule, subject to change.

New Year’s Day

Memorial Day

Independence Day

Labor Day

Thanksgiving Day

Day after Thanksgiving

Christmas Day

New Year’s Eve

If a holiday falls on a weekend, Summit IT may be closed on the Friday before or the Monday after. Exact dates for holiday closures are listed at summititsolutions.com. The Client should confirm Summit IT’s schedule in advance if a service need is anticipated around a holiday.

5. MINUMUM STANDARDS AND COOPERATION REQUIRED FOR SERVICES

In order for Client to qualify for Managed Services from Summit IT, Client’s environment must meet certain minimum standards, including but not limited to operating systems, updates installed, licensed software, and security measures in effect. Summit IT will determine what minimum standards must be met for any given project before services can begin. If Client’s computer systems do not meet the minimum standards required by Summit IT, services cannot be provided.

Client will provide in a timely and professional manner, and at no cost to Summit IT, assistance, cooperation, complete and accurate information and data, such equipment as is agreed to be the responsibility of Client, access to applicable computer and telecommunications facilities and related resources (including, without limitation, networks, firewalls, servers, programs, files, documentation and any passwords required for the provision of the Services), a suitable work environment, and such other resources as are reasonably requested by Summit IT to enable it to perform services contracted for. In addition, Client may be required to conduct preliminary diagnostic steps or to provide additional information related to a support request, prior to a technician being dispatched to Client’s facility. Summit IT will not be liable for any deficiency in performing services if such deficiency results from Client’s failure to provide assistance as reasonably required. Assistance includes, but is not limited to, designating a project manager or contact person to interface with Summit IT during the course of the performance of services.

6. PAYMENT TERMS

6.1 PAYMENTS DUE. Beginning on the Effective Date of this Agreement, Client will be billed according to the Fee and Payment Schedule in the Services Agreement.

Unless stated differently in the Services Agreement, services will be billed monthly with payment due within 15 days.

Summit IT may suspend services to Client if payment is not received within 10 days following the due date on the invoice. Summit IT will not have any responsibility or liability for any interruption of business or other claims, damages or costs of any kind in connection with a suspension of services based on Client’s non-payment of fees.

Client agrees that any and all services requested by Client that fall outside the terms of this Agreement will be considered project work and will be quoted and billed as separate, individual services.

Fees payable under this Agreement do not include the cost of new or replacement hardware, software, cabling or other equipment that may be required to perform services under this Agreement. Client will be quoted a price for new or replacement equipment prior to installation and will approve an estimate and will be billed separately for said equipment.

Client agrees to pay for additional expenses such as airfare, hotel, meals, and related travel expenses for any necessary and agreed upon service-related travel.

6.2 DISPUTED AMOUNTS. Monthly service overage charges and hardware/software costs, if any, will be billed separately. Any amount due to Summit IT under this Agreement is payable in full within 15 days of receipt of an invoice therefore, without withholding, deduction or offset of any amounts for any purpose. For any amount not paid within 30 days of the due date of each invoice, Summit IT reserves the right to charge interest on the past due amount equal to the lesser of 1.5% monthly or the maximum interest charge permissible under applicable law, payable on demand. Any charges not disputed by Client in writing within 15 days of the receipt of an invoice will be deemed approved and accepted by Client.

When a monthly bill due to Summit IT contains both a disputed amount and an undisputed amount, the undisputed amount remains due as specified, while the amount in dispute is investigated.

6.3 TAXES. Client agrees that any Federal, State, or Local Taxes applicable will be added to each invoice for services or materials rendered under this Agreement. Client will pay any such taxes unless a valid exemption certificate is furnished to Summit IT for the state of use.

7. CONFIDENTIALITY

In connection with this Agreement, each party will have access to confidential and privileged information made available by the other. Each party shall protect such confidential and privileged information with at least the same standard of care it uses to protect its own confidential information of like kind, but in no case using less than a reasonable degree of care.

Each party and its employees, agents, and representatives shall protect any and all information that is proprietary to the other party and treat it as strictly confidential and privileged. Neither party will at any time or in any manner, either directly or indirectly, use this information for its benefit. Neither party will divulge, disclose, or communicate in any manner any information that is proprietary to the other party to any third party. However, confidential information does not include:

1. Information that at the time of disclosure is, without fault of the recipient, available to the public;
2. Information that the recipient can show was independently in its possession at the time of disclosure;

iii. Information received from a third party who had the right to disclose the information without violation of any confidentiality agreement with the other party; or

1. Information required to be disclosed pursuant to court order or by law, provided that the disclosing party is, to the extent possible, provided with advance notice of any such disclosure, and that any disclosure is limited to the minimum amount of information required.

Subject to each party’s obligations of confidentiality, Summit IT will be free to use the concepts, techniques and know-how used and developed from any services provided under this Agreement and remains free to perform similar services for other clients using its general knowledge, skills and experience.

8. LIABILITY

Summit IT may exclude and will not be held responsible for failures to provide services if any of the following conditions exist:

• There is a defect or malfunction in any hardware or software which adversely affects Summit IT’s ability to perform the services
• Problems caused by Client’s resources not covered by the services provided under this agreement
• Changes made to Client’s network by Client or other outside party that Client failed to timely communicate to Summit IT
• Service failures that result from actions or inactions of Client contrary to Summit IT’s recommendations
• Delays or downtime due to any factor outside of Summit IT’s reasonable control
• Loss of internet connectivity at Client’s site for any reason

All advice or recommendations given by Summit IT will be made in good faith using knowledge and information available. Any action taken based on this advice and or recommendations is the sole responsibility of the Client.

All dates or schedules which are specified for delivery of services covered by this Agreement are stated only approximately and are estimates. Summit IT will not incur any liability because of delays in meeting such dates or schedules.

In no event will either party be held liable to the other party for any incidental, consequential, special, indirect or punitive damages, including but not limited to damages for lost profits, loss of goodwill, lost productivity, loss of data, interruption of business, or loss of programs or information, that result from any breach or claim of any kind, regardless of whether in contract, tort or otherwise, and regardless of whether the damages were foreseeable or unforeseeable.

Summit IT’s maximum liability relating to services rendered to Client (regardless of form of action, whether in contract, negligence or otherwise) will be limited to the charges paid to Summit IT for the portion of its services or work products giving rise to liability.

9. INDEMNITY

Summit IT shall indemnify Client against any damage or expense relating to bodily injury or death of any person or damage to real and/or tangible personal property incurred while performing its services and to the extent caused by the negligence or omissions of its personnel or agents in performing the services under this Agreement.

Client shall indemnify and hold Summit IT harmless against and from any and all causes of action, damages and other liabilities and expenses of any kind whatsoever (including reasonable attorney’s fees) that might be incurred by Summit IT in connection with a claim by a third party related to any of the following:

1. Client’s use of any Summit IT services in violation of any civil or criminal law, or without proper licensing;
2. Client’s transmission to Summit IT, or use of Summit IT’s services to process, data that is subject to regulation under any state, federal, or foreign privacy law or regulation, without first obtaining Summit IT’s written agreement to the transmission or processing of such data; or

iii. Client’s use of Summit IT services for any high-risk use, where a failure of Summit IT service could lead to death or serious bodily injury, or to significant property or environmental damage.

Summit IT shall make reasonable efforts to protect Client’s network from malicious attacks by computer viruses, computer worms and/or computer hackers (collectively known as “malicious activities”). However, Client understands that no security system can guaranty complete protection against malicious activities as such attacks often involve the intentional action by third parties to invade and injure computer systems. Therefore, Client agrees to hold Summit IT harmless from any loss, injury, or damage to Client or any hardware, software, and/or computer data of Client caused by such malicious activities.

SERVICE LEVEL REMEDIES

Except as otherwise agreed in writing, if a Services Agreement contains an agreement concerning service levels and a required service level is not met, then, as the Client’s sole and exclusive remedy, and Summit IT’s sole and exclusive liability, for the failure to meet the required service level, Summit IT shall provide the Client with a partial credit against the monthly fees payable for the services in question, calculated in the manner specified in the Service Attachment. When the Client wishes to claim that such a service level has not been met, written notice must be given to Summit IT specifically detailing the service level failure.

The maximum total amount of such service level credits that may be earned for events occurring during a single calendar month will not exceed one hundred (100%) percent of the monthly fees for the affected services. Any excess service level credits are forfeited and will not be carried over to future months.

Service Levels and Service Level Credits apply only to Client and not to any customers of Client or to any other party. Client is not entitled to any Service Level Credit if (a) Client is not current on all invoices for Summit IT services, (b) Client is otherwise in breach of the Agreement, (c) Client has failed to provide Summit IT with appropriate access or otherwise interfered with Summit IT’s ability to provide the services, or (d) a failure to meet service levels is attributable to one of the following:

i. Maintenance.

i. Summit IT scheduled maintenance. Repairs, upgrades or modifications to Summit IT’s systems or infrastructure that are scheduled in advance.

ii. Client Maintenance. Repairs, upgrades, scheduled or Client-requested service interruptions or modifications to the services provided to Client, that are scheduled in advance or in connection with a previously agreed-upon routine or schedule.

ii. Extraordinary Events. Service interruptions resulting from denial of service attacks, virus attacks, hacking attempts or any other similar attacks.

iii. False Failures. Erroneously reported failures, failures reported as the result of an error in a Summit IT measurement system, or failures resulting from testing of the services to simulate a failure.

iv. Client-Provided Equipment. Matters caused by or related to the failure, malfunction or configuration changes in hardware or other equipment provided by the Client.

v. Non-Standard Configuration. Matters caused by a Client-requested non-standard or unsupported configuration.

vi. External Network Conditions. Matters caused by general internet or network conditions outside the reasonable control of Summit IT, including but not limited to DNS issues.

vii. Non-Impacting Failure. Nominal failures that do not actually affect Client’s use of the services (e.g. a failure during hours when Client’s business is closed or that affects a non-production computer system).

viii. Unexpected Usage. Matters caused by usage patterns or traffic that exceeds the normal usage.

ix. Client Acts. Matters caused by Client acts (or the acts of others engaged or authorized by Client), including without limitation, any negligence or willful misconduct.

11. PROVIDERS

Summit IT may, at any time and without notice, partner with one or more providers to fulfill its obligations under this Agreement.

12. THIRD PARTY PRODUCTS

Summit IT warrants that its services will be performed in a professional manner in accordance with applicable professional standards. Summit IT does not warrant, nor will it be responsible for, the performance of any third-party products. Client’s sole and exclusive rights and remedies with respect to any third-party product, including rights and remedies in the event a third-party product gives rise to an infringement claim, will be against the third-party vendor and not against Summit IT. Summit IT agrees to assign to Client any assignable warranties it may receive from any such third-party vendor(s).

13. SOFTWARE

Summit IT may install third-party software purchased by Client and will contact the software manufacturer if necessary, in an effort to resolve “bugs” or compatibility issues in the software. However, Summit IT disclaims all liability for the failure of any third-party software to work properly, or for its intended purpose on Client’s network, or any individual computer of the Client.

14. MARKETING

Unless agreed to otherwise in writing by the parties, Client hereby grants Summit IT the right to reference Client’s name, industry, logo, and URLs in its marketing literature, website, and/or correspondence to potential new customers, so as to identify Client as a customer of Summit IT for marketing purposes.

15. EXCLUDED COSTS

Client understands and agrees that the following third-party costs are not covered by the fees set forth in this Agreement and will be charged by Summit IT to Client:

• Parts, hardware and software.
• Software licenses, subscription or upgrade fees.
• Manufacturer or vendor support fees, whether by annual contract or per incident.
• Consumable materials, such as printer cartridges and removable storage tapes/disks.
• Emergency Non-Business Hour Technical Support.
• The cost to upgrade Client’s environment to minimum standards required for this Agreement.
• The costs of service and repairs made necessary by the alteration or modification of equipment other than that authorized by Summit IT, including alterations, software installations or modifications of equipment made by Client’s employees or anyone other than Summit IT.
• Maintenance of application software packages, whether acquired from Summit IT or any other source unless otherwise specified in the Services Agreement.
• Programming (modification of software code) and program (software) maintenance unless otherwise specified in the Services Agreement.
• Training Services of any kind.
• Professional services related to network upgrades or other project related work.
• Professional services of any kind for Client’s employees’ personal computers or networks.

New hardware may be required for replacement and expansion. Summit IT will advise client on hardware recommendations and will provide client with written cost estimates for Client’s approval. Upon Client’s written approval, Summit IT will source hardware for Client and configure and install this hardware. All hardware purchased by Client from Summit IT will carry its manufacturer’s warranty. Summit IT does not warrant this hardware.

Summit IT Solutions does not offer repair services for any devices that are or are not included in the Services Agreement. Replacement of components as part of a manufacturer warranty service and repair may be completed by Summit IT Solutions but is not part of this Services Agreement. Service calls and onsite service calls related to manufacturer warranty service and repair are subject to additional service charges per the rate noted in this agreement. Printer support is limited to the installation of printer drivers on managed PCs and Servers and basic troubleshooting of network related printing issues. Summit IT Solutions does not provide toner, paper or other consumables as part of this Agreement.

16. INCREASES IN THE PRICES OF THIRD-PARTY PRODUCTS AND SERVICES

Summit IT has the right to pass through to the Client any increases in the prices of third-party products and services. Summit IT will make efforts to provide at least thirty (30) days’ notice with respect to any such price increases that will take effect (or the maximum amount of notice reasonably possible in light of the timing of the notice from the third-party vendor or service provider).

If the Client is unwilling to accept such price increases, then the Client has the right to terminate any affected Service Agreements as of the end of the prior monthly billing cycle.

17. PROJECT WORK

Project Work is defined as any work performed that improves or upgrades the Client’s IT network beyond the standard services listed in the Services Agreement. A project is a collaborative effort between Summit IT and the Client that will likely involve research and or design and is carefully planned to achieve a particular result. Work performed to configure and install network equipment and solutions, such as, but not limited to: Servers, Firewalls, Access Points, Backup Solutions, and other miscellaneous Client requests, is considered Project Work. Summit IT will provide the Client with an estimate for the hardware/software and labor costs related to Project Work, and this work will fall outside the scope of this Agreement.

The preceding is Summit IT’s only warranty concerning the services and any work product and is made expressly in lieu of all other warranties and representations, expressed or implied, including any implied warranties of fitness for a particular purpose, merchantability or otherwise.

18. FORCE MAJEURE

Neither party will be held liable for any delay or failure in performance of all or a portion of the services of any part of this Agreement 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.

19. PERIOD FOR BRINGING CLAIM

No action or other proceeding based on a breach of warranty or other claim concerning a defect in the Services may be commenced by Client more than one (1) year after the date of the breach or event giving rise to the claim. Failure to make such a claim within such one (1) year period will forever bar the claim.

20. NON-COMPETE

Summit IT reserves the right to determine the personnel to perform the services related to this Agreement.

For the duration of this Agreement and for a period of one year after the termination of this Agreement, Client and Client’s affiliates agree not to employ, solicit the employment of, or accept services from any current or former employee of Summit IT. Upon proof of a violation of this section, Client agrees to pay Summit IT an amount equal to 150% of the annual compensation for the employee for a one-year period immediately preceding the hiring or solicitation of any such Summit IT personnel. Such amount is not intended as a penalty but as a reasonable estimate of damages based upon the projected costs Summit IT would incur to identify, recruit, hire and train a suitable replacement for the affected employee.

21. GOVERNING LAW AND DISPUTE RESOLUTION

This Agreement will be governed by and construed in accordance with the laws of the State of Ohio.

Each party shall attempt to settle amicably any disputes related to this Agreement by means of mediation in accordance with the Commercial Mediation Procedures of the American Arbitration Association. Mediation proceedings will take place in Summit County, Ohio, unless both parties agree to a different venue. The costs of such proceedings will be shared equally by the parties. No action or proceeding concerning a dispute will be commenced prior to the expiration of sixty (60) days following the date of the first mediation session. Failing amicable settlement regarding any such dispute, including without limitation claims related to the existence, validity, interpretation, performance, termination or breach of this Agreement, Client agrees to submit to the jurisdiction of the state and federal courts of Summit County, Ohio, for the purposes of resolving any dispute or claim arising in connection with this transaction.

22. THIRD-PARTY BENEFICIARIES & ASSIGNMENT

This Agreement is for the sole benefit of the parties and their respective successors and permitted assigns, and nothing herein is to be construed to give any person or entity, other than the parties and their respective successors and permitted assigns, any legal or equitable rights hereunder.

Neither party may assign this Agreement, in whole or in part, or any of its rights or obligations, without the prior written consent of the other party, and any purported assignment made without such consent will be void and of no effect. Consent shall not be unreasonably withheld by either party.

23. NON-WAIVER

No delay or failure by either party to exercise any right under this Agreement, will constitute a waiver of that or any other right. The failure of either party to insist on the strict performance of any of the terms and conditions of this Agreement will not be construed as a waiver of said terms and conditions in that instance or in future instances.

24. SEVERABILITY

If any of the provisions set forth in the Agreement are found to be void or unenforceable under applicable law, then the provision in question will, if possible, be deemed to be modified to the minimum extent necessary to make it compliant, or, if such a modification is not possible, then the provision in question will be stricken without prejudice to any other provisions, all of which will remain in full force and effect.

25. COMPLETE AGREEMENT

This Agreement, comprised of this Master Services Agreement and a signed Services Agreement, sets forth the complete Agreement between parties and supersedes all previous discussions and communications relating to the subject matter of this arrangement. No change, modification, waiver of any term of this Agreement will be valid unless it is in writing and signed by both parties. Each party, along with its respective legal counsel, has had the opportunity to review this Agreement, and accordingly, in the event of any ambiguity, such ambiguity will not be construed in favor of, or against, either party.

There are no understandings between the parties hereto as to the subject matter of this Agreement other than as set forth herein. All previous communications between the parties concerning the subject matter of this Agreement, whether verbal or written, including, but not limited to Client’s order, are hereby abrogated and withdrawn, and this Agreement constitutes the whole of the Agreement between the parties.

If a conflict exists between the terms of the Services Agreement and this MSA, the terms of the Services Agreement will govern.