Globalquest Master Services Agreement



This Master Services Agreement (“MSA”) between Globalquest Inc. (“Globalquest”), a New York State corporation located at 2813 Wehrle Drive, Suite 3, Williamsville, NY 14221 (“Client”) shall begin on the date of the execution of a signed quote for services and continue for the term specified in the section Term. Globalquest agrees to perform the work, as described in the associated quote, and the Client agrees to pay Globalquest for all work performed under the terms specified herein.

Article I – Scope of Services. 



A.      Quotes. The Services to be provided by Globalquest are not described in this Agreement; instead, Client will be provided with an electronic quote, and/or proposal, that describes the services through which Client agrees to purchase the Services from Globalquest. The Quote may have one or more Statements of Work (“SOW”) attached to it that further describes, summarizes, and/or defines the scope of the services being provided by Globalquest. By having a representative of the Client sign (by any means of signature including, but not limited to, an electronic signature) the associated Quote, Client agrees to the terms of the Quote, any associated SOW and the terms of this Agreement. If Client does not agree to the terms of the Quote, SOW and/or this Agreement, then Client should not execute the Quote. 


B.      Conflict of Scope of Services. If there is a material difference between the language in a Quote and/or SOW and the language in this Agreement, then the language of the Quote and/or SOW will control, except in situations involving warranties, limitations of liability, or termination of this Master Services Agreement. Under those limited circumstances, the terms of this Agreement will control unless the SOW expressly states that it is overriding the conflicting provisions of this Agreement.

Article II – General Terms and Conditions

A.      Relationship of Parties. Globalquest is acting only as an independent contractor hereunder. This Agreement does not create a joint employer, shared employee, or leased employee relationship with respect to any employees of either party. Except as otherwise expressly provided herein, Globalquest has the sole right to supervise, manage (including management of Globalquest’s agents, employees and contractors), contract, direct, procure, provide or cause to be provided, all services to be provided pursuant hereto. This Agreement shall not create any partnership or joint venture between the parties.


B.     Ownership. Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, copyrights and other intellectual property owned or licensed by such party (“Intellectual Property”), and nothing in this Agreement or any SOW shall be deemed to convey or grant any ownership rights in one party’s Intellectual Property to the other party. Client understands that all software provided to Client is licensed, and not sold, to Client unless otherwise expressly stated in an applicable Quote and/or SOW.


C.     Rules of Conduct. While on the Client’s premises in connection with the performance of this Agreement Globalquest personnel will comply with the same rules of conduct as apply to the Client’s own personnel at that location of which Globalquest is given written notice. On notice from the Client, Globalquest will remove immediately any of its personnel assigned to perform work under this Agreement for the Client who do not reasonably meet this condition. The Client agrees to provide safe working environment for Globalquest personnel under the work requested by the Client hereunder and to make commercially reasonable adjustments if such workplace conditions change and the Client has been made aware of such changes. The Client agrees to provide to Globalquest such office facilities, equipment, telephone access, internet access and other resources necessary and appropriate to perform the work described in this agreement.

 

D.     Employment Solicitation. Neither party nor its personnel are or shall be deemed to be employees of the other party. As such, both parties agree not to solicit the other parties employees for a period of 1 year after termination of this agreement.

 

E.      Use of Contractors. Globalquest reserves its rights to utilize contracted employees or subcontractors to meet its requirements under the terms, conditions, and obligations stated in this Agreement and all related Quotes and/or SOW only with the prior consent of Client, which shall not be unreasonably withheld.

 

F.      Compliance. Unless otherwise expressly stated in a Quote and/or SOW, the Services are not intended, and will not be used, to bring Client into full regulatory compliance with any rule, regulation, or requirement that may be applicable to Client’s business or operations. Depending on the Services provided, the Services may aid Client’s efforts to fulfill regulatory compliance; however, the Services are not (and should not be used as) a compliance solution.

 

 

G.     Environment. For the purposes of this Agreement, “Environment” means, collectively, any computer network (cloud-based or otherwise), computer system, peripheral or device (virtual or physical) installed, maintained, monitored, or operated by Globalquest pursuant to a Quote and/or SOW. To avoid a delay or negative impact on Globalquest’s provision of the Services, during the term of this Agreement, Client agrees to refrain from modifying or moving the Environment or installing software in the Environment, unless Globalquest is expressly notified and approves of such activity.

 

H.     Authorized Client Representative. Globalquest will be entitled to rely on any directions or consent provided by Client representatives who are authorized in a Quote and/or SOW to provide such directions or consent (“Authorized Representative”). If no Authorized Representative is identified in an associated Quote and/or SOW, then the Client’s Authorized Representative will be identified as the person who signed the Quote and/or SOW associated with this Agreement.

 

I.        Recommendations and/or Instructions. Globalquest may provide Client with specific recommendations and/or instructions related to the Services. (For example, Globalquest advice or directions may include increasing the Environment’s server or hard drive capacity or replacing obsolete equipment.) Client is strongly advised to promptly follow Globalquest advice which, depending on the situation, may require Client to make additional purchases or investments in the Environment or where the Environment is maintained, at the sole cost of Client. GLOBALQUEST WILL NOT BE RESPONSIBLE FOR ANY PROBLEMS OR ISSUES (SUCH AS DOWNTIME OR SECURITY-RELATED ISSUES) CAUSED BY CLIENT FAILURE TO PROMPTLY FOLLOW GLOBALQUEST’S RECOMMENDATIONS AND/OR INSTRUCTIONS. If, in Globalquest’s discretion, Client failure to follow or implement Globalquest recommendations and/or instructions renders part or all of the Services economically or technically unreasonable to provide, then Globalquest may terminate the applicable SOW for cause by providing notice of termination to Client. Unless specifically and expressly stated in a Quote and/or SOW, any services required to remediate issues caused by Client’s failure to follow Globalquest’s advice or directions, or Client’s unauthorized modification of the Environment, as well as any services required to bring the Environment up to or maintain the Minimum Requirements, are out-of-scope and not covered under any SOW and must be remedied at client’s expense under a change order or additional SOW or Quote.


 

J.       Software Requirements. At all times, all software utilized and/or installed within the Environment must be genuine and licensed, and Client agrees to provide Globalquest with proof of such licensing upon request. If Globalquest requires Client to implement certain minimum hardware or software requirements in a Quote and/or SOW (“Minimum Requirements”), Client agrees to do so as an ongoing requirement of Globalquest providing Services to Client.

Article III – Term

The Term of this Agreement is twelve (12) months and begins on the Effective Date of the Quote and will automatically renew each year on the anniversary of the Effective Date for a total of five (5) years unless either party provides written notification to cancel the agreement in accordance with Article IV of this agreement.

Article IV – Termination

A.      Termination for Convenience. Notwithstanding anything in this Agreement or any Quote and/or SOW to the contrary, either party may terminate this Agreement and any SOW without cause by providing thirty (30) days’ advance written notice.

 

B.      Rights Upon Termination. Upon the end of the Term, Client will pay all fees, expenses, taxes and other charges incurred through the effective date of such expiration or termination and payable by Client pursuant to Article III of these General Terms and Conditions or any other provision hereof. The provisions of Articles II, V, VI, VIII, IX and X will survive the expiration or termination of this Agreement for any reason.

 

C.      Deletion of Data Upon Termination. Unless otherwise expressly stated in a Quote and/or SOW, Globalquest will have no obligation to store or maintain any Client data in Globalquest’s possession or control beyond the date of termination of this Agreement. Globalquest will be held harmless for, and indemnified by Client against, any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, Globalquest deletion of Client data beyond the time frames described in this section.

 

D.     Password Transfer Upon Termination. In the event that Client decides to terminate this Agreement at anytime, Globalquest will transfer Environment passwords to the Client on the Termination date. If the Client requires any Environment passwords prior to the Termination date submitted in writing to Globalquest, then Client will (i) no longer receive any services of Globalquest going forward; (ii) continue to pay Globalquest all fees and taxes through the Termination date; (iii) void this Agreement immediately excluding the provisions of  Articles II, V, VI, VIII, IX and X.

 

E.      Monthly Third-Party Software/Hosting Subscriptions Upon Termination. Client acknowledges that there may be circumstances in which Client is required to purchase a Monthly-Invoiced, Third-Party Software and or Hosting Subscription from Globalquest. These subscriptions are billed to Client on the month following service. Upon Termination of this Agreement, Client is responsible for all fees and taxes related to any Monthly Third-Party Software Subscriptions which will be billed to Client post-termination of this Agreement.

Article V – Confidentiality

Each party agrees that all trade secrets, pricing information and any document marked confidential or proprietary, communicated to it by the other whether before or after the Agreement Effective Date, or included in the other party’s network system (collectively, “Confidential Information”), were and will be received in strict confidence, will be used only for purposes of this Agreement or as otherwise contemplated by this Agreement, and will not be disclosed by the recipient party, its agents or employees to any third party without the prior written consent of the other party, except as may be necessary by reason of legal, accounting or regulatory requirements beyond the reasonable control of the recipient party.

Notwithstanding the foregoing, the Agreement imposes no obligation upon Globalquest with respect to any Confidential Information (a) that was in Globalquest’s possession before receipt from client; (b) is or becomes a matter of public knowledge through no fault of Globalquest; (c) is rightfully received by Globalquest from a third party not owing a duty of confidentiality to the client, is disclosed without a duty of confidentiality to a third party by, or with the authorization of, client or; (d) is independently derived by Globalquest.

A.      Compelled Disclosure. If Globalquest is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, Globalquest will immediately notify Client of such requirement so that Client may seek an appropriate remedy and/or waive Globalquest’s compliance with the provisions of this Section. Globalquest will use its reasonable best efforts, at Client expense, to obtain or assist Client in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, Globalquest may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that Globalquest has been advised, by written opinion from counsel, that Globalquest is legally compelled to disclose.

 

B.      Business Associate. If Globalquest enters into a business associate agreement (“BAA”) with Client for the protection of personal health information, then the terms of the BAA will be read in conjunction with the terms of the confidentiality provisions of this Agreement. The terms that protect confidentiality most stringently shall govern, and conflicting privacy- or confidentiality-related terms shall be governed by the BAA.

Article VI – Excluded Services and Limitations of Liability

A.      Force Majeure. No party will be liable for any default or delay in the performance of its obligations under this Agreement if, and to the extent, such default or delay is caused, directly or indirectly, by any circumstance beyond such party’s reasonable control, including without limitation any (1) fire, flood or water damage, elements of nature or other acts of God, including without limitation any of the foregoing that are harmful to electronic circuitry, (2) outbreak or escalation of hostilities, war, riots or civil disorders in any country, (3) act or omission of the other party or any governmental authority, (4) labor disputes (whether or not the employees’ demands are reasonable or within the party’s power to satisfy), (5) nonperformance by a third party (including any voice or data telecommunications common carrier), or (6) failures or fluctuations in telephone or other telecommunications equipment or lines or other equipment. In any such event, the non-performing party will be excused from any further performance or observance of the obligations so affected only for as long as such circumstances prevail and such party continues to use commercially reasonable efforts to recommence performance or observance as soon as practicable.

 

B.      Data Backup. Globalquest may provide to Client the ongoing use of Third-Party Backup software. Globalquest (i) does not warrant or guarantee that any Third-Party software will perform properly, (ii) will not be responsible for any downtime or losses arising from or related to the installation, use, or inability to use any Third-Party software. Client must adhere to all Third-Party Software Agreements for products that they utilize. Client is solely responsible for backup and other protection of its data against loss, damage or destruction. Globalquest will have no obligation or liability with respect to the Client data.

               

C.      Exclusion of Warranties. Globalquest agrees to take all necessary steps to provide, to the extent permitted by third party vendors, any and all license rights and/or manufacturers’ warranties related to the hardware and/or software purchased by the Client as set forth in this agreement and such warranties shall be exclusive.

 

D.     Breach/Cyber Security Incident Recovery. A Breach/Cyber Security Incident is defined as any unauthorized or impermissible access to or use of the Environment, or any unauthorized or impermissible disclosure of Client’s confidential information (such as user names, passwords, etc.), that (i) compromises the security or privacy of the information or applications in, or the structure or integrity of, the Environment, or (ii) prevents normal access to the Environment, or impedes or disrupts the normal functions of the Environment. Unless otherwise expressly stated in a Quote and/or SOW, the scope of this Agreement does not include the remediation and/or recovery from a Breach/Cyber Security Incident. Such services, if requested by Client, will be provided on a time and materials basis under Globalquest’s then-current hourly labor rates. Given the varied number of possible Security Incidents, Globalquest cannot and do not warrant or guarantee (i) the amount of time required to remediate the effects of a Security Incident (or that recovery will be possible under all circumstances), or (ii) that all data impacted by the incident will be recoverable. 

 

E.      Warranty. Globalquest warrants that the services provided herein, exclusive of manufacturer hardware/software warranties, will be performed substantially in accordance with the applicable work statements set forth in this Agreement. Globalquest will provide to client, and client is exclusively bound solely by manufacturer’s warranty on any of manufacturer’s products or services. Globalquest has no obligation or liability to client on manufacturer’s product or services. Globalquest’ sole obligation for failure to perform any service substantially in accordance with the applicable service description will be refund of any charges paid by the Client to Globalquest for services which were not performed as warranted and for the Client to terminate the affected service. Should either party wish to terminate any part or all of this agreement for these reasons, 30 days written notice is required. In the event that the Client requests a refund pursuant to these terms, but does not wish to terminate the agreement, 30 days notice is requested. Any such refund will take place within 30 days from the receipt of request. NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, APPLY HEREUNDER.

 

F.      Limitation of Liability. The Client agrees that Globalquest’ total Liability hereunder, including but not limited to any negligence of Globalquest, shall not exceed the amount paid for services only by the Client to Globalquest for the three (3) months immediately preceding the occurrence giving rise to any claim by the Client. In no event will Globalquest be liable for any incidental or consequential damages including without limitation, loss of use, loss of data, loss of profit, loss of moneys deposited or removed from equipment or any affiliated components, liability to third parties, however caused, whether by negligence of Globalquest or otherwise.

Article VII – Insurance and Indemnification.

A.      Indemnification. Subject to the provisions of this Agreement, each party (an “Indemnifying Party”) agrees to indemnify, defend and hold the other party (an “Indemnified Party”) harmless from and against any and all losses, damages, costs, expenses or liabilities, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to, the Indemnifying Party’s breach of this Agreement. The Indemnified Party will have the right, but not the obligation, to control the intake, defense and disposition of any claim or cause of action for which indemnity may be sought under this section. The Indemnifying Party shall be permitted to have counsel of its choosing participate in the defense of the applicable claim(s); however, (i) such counsel shall be retained at the Indemnifying Party’s sole cost, and (ii) the Indemnified Party’s counsel shall be the ultimate determiner of the strategy and defense of the claim(s) for which indemnity is provided. No claim for which indemnity is sought by an Indemnified Party will be settled without the Indemnifying Party’s prior written consent, which shall not be unreasonably delayed or withheld.

 

B.      Insurance. Globalquest agrees to maintain, at its own expense, during the term of this agreement, the necessary levels of insurance coverage. Globalquest agrees to provide the Client with thirty days (30) prior written notice of any impending cancellations, non-renewal, expirations or reduction in the coverage of insurance set forth in the Certificate of Insurance.

Article VIII – Prices and Payments

A.      Fees. Client will pay Globalquest for services provided by Globalquest pursuant to all Quotes, Invoices and/or SOWs and all the fees and charges stated in such Quotes, Invoices and/or SOWs. Subject to Client’s termination right stated in Article IV, Globalquest can increase or decrease the amount of any fees payable under one or all Quotes, Invoices and/or SOWs by written notice delivered to Client not less than thirty (30) days prior to any anniversary of the Effective Date. In addition, all fees and charges are subject to increase or decrease by Globalquest upon any change in the specifications for any services to be provided herein. Services outside the scope of this Agreement, which Client requests and Globalquest agrees to perform will be performed for fees and charges mutually agreed upon in writing by Globalquest and Client.

 

B.      Travel Expenses. The fees and charges stated in each Quote and/or SOW for any services rendered under such Quote and/or SOW on-site at one or more locations of Client will include the travel expenses. Globalquest may, upon prior written authorization from Client, require Client to reimburse Globalquest for the following (subject to Globalquest providing Client with valid receipts or other appropriate documentation): (1) travel time at the standard hourly rates for such service representatives (portal-to-portal for hourly service representatives), (2) reasonable hotel or lodging expenses and applicable taxes, not to exceed $150.00 per night per service representative, (3) meals charges not to exceed $50.00 per day (including gratuities) per service representative, (4) air fare at available coach or economy rates, and (5) reasonable expenses for auto rental (including charges for fuel), tolls, parking, taxis or other ground transportation.

 

C.      Other Reimbursable Expenses. Client will also pay, or reimburse Globalquest for, all reasonable out-of-pocket expenses incurred by Globalquest, and previously authorized by Client in writing, in connection with (1) any Client-requested document reproduction, (2) any required shipping, couriering, faxing or telexing of tangible items to Client, or from Client to Globalquest, (3) special Client-requested courier deliveries, and (4) other reimbursable expenses specified in any Quote and/or SOW.

 

D.     Taxes. In addition to the fees, charges and reimbursable expenses hereunder, Client will pay all federal, state, local, excise, sales, use and other taxes or levies (“Taxes”) now or hereafter levied or imposed on the services or parts provided hereunder or on this Agreement, except for Taxes on Globalquest’s income, assets or net worth. In lieu thereof, Client may provide to Globalquest a tax exemption certificate acceptable to Globalquest and the taxing authority. Client will reimburse Globalquest for all such Taxes paid by Globalquest for which Client is responsible hereunder.

 

E.      Payment of Invoices. Globalquest will invoice the Client for the fees, charges and reimbursable expenses under any Quote and/or SOW at a minimum of every two weeks for the prior period services were rendered. Managed Services will be billed Monthly (one month in advance). All Hardware, Software, Licenses and /or Third-Party Warranties will be invoiced to Client upon shipping notification from Globalquest’s vendors. Client will pay all such invoices in full within thirty (30) days from date of each invoice. Client will reimburse Globalquest for all reasonable collection expenses, including reasonable attorneys’ fees and court costs, for delinquent amounts.

 

F.      Nonpayment. Fees that remain unpaid after the due date on the invoice will be subject to interest on the unpaid amount(s) until and including the date payment is received, at the lower of either 5% per month or the maximum allowable rate of interest permitted by applicable law. Globalquest reserves the right, but not the obligation, to suspend part or all of the Services without prior notice to Client in the event that any portion of fees are not timely received by Globalquest, and monthly or recurring charges shall continue to accrue during any period of suspension. Notice of disputes related to fees must be received by Globalquest within thirty (30) days after the applicable Service is rendered or the date on which Client pays an invoice, whichever is later; otherwise, Client waives the right to dispute the fee thereafter. A re-connect fee may be charged to Client if Globalquest suspends the Services due to Client nonpayment. Time is of the essence in the performance of all payment obligations by Client.

 

G.     Collections. If Globalquest is required to send Client’s account to Collections or to start any Collections-related action to recover undisputed fees, Globalquest will be entitled to recover all costs and fees we incur in the Collections process including but not limited to reasonable attorneys’ fees and costs.

Article IX – Third-Party Software and Services

A.      Third Party Services. Portions of the Services provided to Client may be acquired from, or rely upon the services of, third party manufacturers or providers, such as data hosting services, help desk services, domain registration services, and data backup/recovery services (“Third Party Service”). Not all Third Party Services may be expressly identified as such in a SOW, and at all times Globalquest reserves the right to utilize the services of any third party provider or to change third party providers in Globalquest’s sole discretion as long as the change does not materially diminish the Services to be provided to Client under a SOW. Globalquest will not be responsible, and will be held harmless by Client, for the failure of any third-party provider or manufacturer to provide Third Party Services to Globalquest or to Client.

 

B.      Third-Party Hardware and/or Software Support. If, at the discretion of Globalquest, it is determined that a hardware or software issue requires vendor support, Globalquest may contact the vendor on Client’s behalf and invoice Client for all fees and costs involved in that process. If the fees or costs are anticipated in advance to exceed $125, Globalquest will obtain Client’s permission before incurring such expenses on Client’s behalf unless exigent circumstances require otherwise.

 

C.      Third-Party Software Updates. Software updates to hardware and software (“Updates”) are created and distributed by third parties, such as hardware and/or software manufacturers, and may be supplied from time to time for installation into the Environment. If required under a Quote and/or SOW, Globalquest will implement and follow the manufacturers’ recommendations for the installation of Updates; however, (i) Globalquest does not warrant or guarantee that any Update will perform properly, (ii) Globalquest will not be responsible for any downtime or losses arising from or related to the installation, use, or inability to use any Update, and (iii) Globalquest reserves the right, but not the obligations, to refrain from installing an Update until Globalquest has determined, in its reasonable discretion, that the Updates will be compatible with the configuration of the Environment and materially beneficial to the features or functionality of the affected software or hardware.


D.     EULAs. Portions of the provided Services may require Client to accept the terms of one or more Third-Party End User License Agreements (“EULAs”). If the acceptance of a EULA is required in order to provide the Services to Client, then Client hereby grants Globalquest permission to accept the EULA on the Client’s behalf. EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in this Agreement. Client agrees to be bound by the terms and warranties of such EULAs and will look only to the applicable Third-Party provider for the enforcement of the terms of such EULAs. If, while providing the Services, Globalquest is required to comply with a Third-Party EULA and the Third-Party EULA is modified or amended, Globalquest reserves the right to modify or amend any applicable Quote and/or SOW with Client to ensure Globalquest’s continued compliance with the terms of the Third-Party EULA.

Article X – Miscellaneous

A.      Severability. If any provision of this Agreement or the application thereof to any person or circumstance, is declared judicially to be invalid, unenforceable or void, such decision will not invalidate or void the remainder of this Agreement. Instead, this Agreement will be deemed amended by modifying such provision to the extent necessary to render it valid, legal and enforceable while preserving its intent. B.      Governing Law and Venue. This Agreement will be construed in accordance with and the substantive laws of the State of New York will govern the rights of the parties. Client hereby irrevocably consent to the exclusive jurisdiction and venue of Erie County, New York, for any and all claims and causes of action arising from or related to this Agreement. C.      Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior and contemporaneous agreements and understandings, whether written or oral, between the parties with respect to the subject matter hereof. There are no representations; understandings or agreements relating to the subject matter hereof that are not fully expressed herein. All Quotes and/or SOWs (and Attachments and Schedules thereto) attached hereto are a part of, and incorporated by reference into, this Agreement. Except as otherwise provided herein, only a written instrument duly executed by both parties may amend this Agreement. No waiver of a party’s rights hereunder will be enforceable against such party unless in writing and signed by such party. D.     Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. E.      Assignment. Neither this Agreement nor any Quote and/or SOW may be assigned or transferred by a party without the prior written consent of the other party. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, Globalquest may assign rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of Globalquest’s business, or any other transaction in which ownership of more than fifty percent (50%) of Globalquest’s voting securities are transferred; provided, however, that such assignee expressly assumes Globalquest’s obligations hereunder.