Master Agreement
The terms of this Agreement are expressly made subject to the terms and condition of that certain Master Agreement entered into by and between the parties hereto, as amended (the “Master Agreement”), and the G&G Group IT Standards set forth on Consultant’s website at www.gggroup.net (the “IT Standards”). Consultant reserves the right to amend and/or supplement the IT Standards at any time by posting any such amendment/supplement on its website. All capitalized terms used herein shall have the same meaning as ascribed to them in the Master Agreement, unless otherwise expressly provided herein.
1. Services. Consultant shall render to Client services in accordance with approved projects (each a “Project”) in accordance with Schedules of Work which have been executed by the parties and which specify the scope of such Project, the cost and payment terms of the Project, its estimated duration and all other matters pertinent to completion of the Project.
2. Compensation and Terms of Payment. Client agrees to pay Consultant all fees and reimbursable expenses in accordance with the terms of the applicable Schedule of Work. Client will remit payment as per the terms of the applicable Schedule of Work. There will be a US$50.00 fee for bounced checks. All payments shall be submitted to Consultant at the address below unless otherwise directed by Consultant in writing.
3. Scheduling and Access. Client must provide not less than 24-hour written notice of cancellation prior to commencement of any specific project or task to be billed on an hourly basis in order to avoid the assessment of charges. If Client provides less than 24-hour notice, Consultant reserves the right to bill for any travel time plus one (1) hour of labor in addition to the cost of the return visit. In the event that a technician is denied physical access to any required systems, this will be considered a cancellation of service and above charges will be assessed to Client.
4. Change Orders. All changes made to any Schedule under this Agreement must be made in writing and must be signed by Consultant and Client.
5. Use of Sub-Contractors. From time to time, with the prior written consent of Client, Consultant may engage the services of contractors/sub-contractors for work performed as part of this Agreement, provided that such sub-contractors are bound by terms at least as stringent as the terms that Consultant is bound by under this Agreement and Consultant shall remain responsible for all services provided by such subcontractors.
6. Alteration to Services. If Client alters any services or equipment provided by Consultant without the express written consent of Consultant, Client does so at its own risk and expense. Consultant shall not be liable or responsible in any way for problems created as a result of Client’s alteration of services or equipment, inclusive of Client’s network or system. If Client wishes Consultant to correct or repair any systems adversely affected by any such alterations, such services provided by the Consultant will be considered a new project and will be subject to an applicable Schedule.
7. Obligation to have Backup Solution. Except as otherwise expressly agreed by the parties in writing, Client shall be responsible for having backup of all critical software, documents, and applications on all of Client’s servers, systems, workstations and any other electronic devices.
8. Software Licensing. Client warrants that all software it provides to the Consultant for installation, configuration, or use in any way has been legally obtained and is properly licensed. Client further warrants that it has legally purchased a sufficient number of copies of such software and that it has not violated any licensing laws. Consultant has no knowledge regarding licensing of software provided to it by Client and Client indemnifies Consultant against any third party claims for violation of software license for any installation, configuration, or use of such software, to the extent not due to the negligence or willful misconduct of Consultant and provided that Consultant give Client prompt written notice of any such claims and Client has the right to control the defense and/or settlement thereof. Client understand and acknowledges that it shall be solely responsibly and liable for all licensing and purchasing of software.
9. Termination. Except as otherwise provided in such agreement, any agreement entered into by and between Client and Consultant may be terminated:
a. By Client within the first thirty (30) days of this Agreement for any reason upon ten (10) days prior written notice to Consultant.
b. By either party upon ninety (90) days written notice prior to the end of the then current term.
c. By either party: (i) upon thirty (30) days prior written notice to the other party in the event that other party 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 written notice thereof; or (ii) upon the mutual written agreement of the parties.
10. Effect of Termination. In the event that this Agreement pursuant to Section 9. above, Client shall pay Consultant upon receipt of Consultant’s invoice, any accrued but unpaid sums due consultant under any existing agreement(s) between Client and Consultant, reduced by all prior payments made by Client under such agreement(s). If any such agreement(s) is terminated by Client for any other reason other than pursuant to Section 9. above, Client shall be responsible for the payment of all fees due Consultant through the end of the then current term of each such agreement(s).
11. Non-Solicitation of Employees and Consultants. During the term of this Agreement and for a period of 1-year after the termination thereof, Client shall not (either directly or indirectly) employ, solicit or cause to be solicited for the purpose of employment or engagement any employee or contractor of Consultant, or aid any third party to do so, without the express prior written consent of Consultant. In the event that Client desires to employ or engage (either directly or indirectly) any employee or contractor of Consultant, Client shall notify Consultant in writing and Consultant may, in its sole discretion, permit Client to hire or engage such employee or contractor in exchange for Client executing either a new Schedule of Work or modifying an existing Schedule of Work the monetary value of which shall be equal to one (1) year of such desired employee’s or contractor’s compensation.
12. Disclaimer. Warranty on all materials and supplies shall be the manufacturer’s warranty. Consultant shall ensure that manufacturer’s warranties for all materials and supplies, including hardware and software, will be assigned to Client. Except as otherwise provided in this Agreement, Consultant makes no warranty of any kind for any third-party hardware or software. In the event of failure, Client may retain the services of Consultant to obtain replacement parts as covered under the manufacturer’s warranty. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, CONSULTANT MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL OF WHICH ARE HEREBY DISCLAIMED AND EXCLUDED. CONSULTANT SHALL NOT BE LIABLE TO CLIENT FOR COMPENSATION, REIMBURSEMENT, LOSS PROFITS, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DAMAGES OF ANY OTHER KIND OR CHARACTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND CLIENT HEREBY WAIVES ANY RIGHTS IT MAY HAVE TO MAKE A CLAIM OR DEMAND THEREFOR. IN NO EVENT SHALL CONSULTANT’S LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY CLIENT TO CONSULTANT FOR PRODUCTS OR SERVICES PROVIDED BY CONSULTANT TO CLIENT UNDER THIS AGREEMENT FOR THE ONE HUNDRED EIGHTY (180) DAY PERIOD IMMEDIATELY PRECEDING THE DATE OF SUCH CLAIM.
13. Indemnification of Consultant. Client agrees to indemnify, defend, and hold Consultant harmless from any and all third-party claims, actions, damages, liabilities, costs, and expenses (including attorney’s fees and expenses), hereinafter “Claims,” arising out of or related to the conduct of Client’s business, including, without limitation, the Client’s or Consultant’s services to the extent not due to the negligence or willful misconduct of Consultant and provided that Consultant provide Client with prompt written notice of such Claims and Client has the right to control the defense and/or settlement of such Claims.
14. Limitations of Technology. Client acknowledges that technologies are not universally compatible, and that there may be particular services or devices that Consultant may be unable to monitor, manage, or patch. Consultant agrees to inform the Client when such a situation arises. The Client agrees to correct the situation if applicable, and to hold the Consultant harmless in any case. Patches and antivirus definitions are distributed by their respective software vendors, and as such, Consultant has no direct control over the effectiveness or lack thereof of the software being applied. Consultant shall not be held responsible for interruptions in service due to patches released by software vendors.
15. Overnight Administration Policy. Workstations and servers require regular updates and maintenance to ensure smooth operation. Some of this work can be disruptive. To minimize the impact to users, some of this work is done overnight, typically from about 11:00 p.m. to 5:00 a.m.
16. Confidentiality. During the Term of this Agreement and for a period of seven (7) years thereafter, both parties shall maintain in confidence (i.e., not disclose to any third party) and use only for the purpose for which it was disclosed confidential information and data received from or on behalf of the other party, (“Information”), whether such Information is contained in a written or electronic document, whether it is oral or whether it is disclosed by means of inspection. Information shall not include any information that (i) is or becomes part of the public domain other than by unauthorized acts of the party obligated not to disclose such Information;, (ii) can be shown to have been disclosed to the receiving party by a third party, provided such Information was not obtained by such third party directly or indirectly from the other party under this Agreement pursuant to a confidentiality agreement, (iii) prior to disclosure under this Agreement can be shown to have been already in the possession of the receiving Party, provided such Information was not obtained directly or indirectly from the other Party under this Agreement pursuant to a confidentiality agreement, or (iv) can be shown to have been independently developed by the receiving party without breach of any of the provisions of this Agreement. If a receiving Party is required to disclose Information of the other Party pursuant to interrogatories, requests for information or documents, subpoena, civil investigative demand of a court or governmental agency, it shall use commercially reasonable efforts to do so on a confidential basis (and provided that the disclosing Party furnishes only that portion of the Information which is legally required), and, in any event, it shall provide the other party prompt notice after receipt of any such official requests to enable the other Party to seek a protective order or similar relief.
17. Intellectual Property. Each party agrees that it will not make use of, either directly or indirectly, any of the information which it has received from the other, other than for the purpose for which in the information has been disclosed, except without specific prior written authorization.
18. Independent Contactor Relationship. Consultant’s relation to Client shall be that of an independent contractor and neither this Agreement nor the services to be rendered hereunder shall for any purpose whatsoever or in any way of manner create any employer-employee relationship between the parties. Consultant shall not be deemed an agent of Client for any purpose and shall have no authority to bind Client.
19. Force Majeure. Neither party shall be in default of these terms if events due to a natural calamity, act of government, or similar causes are beyond the control of such party if such party gives prompt written notice to the other party and provided that the affected party uses its reasonable commercial efforts to avoid or remove such causes of non-performance and shall continue performance whenever such causes are removed
20. Assignment. Except as otherwise provided below, neither party shall assign its rights nor obligations under this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld or delayed. Either party may assign this agreement to an entity which acquires substantially all of the stock or assets of such party without written consent of the other party; provided, however, that such consent will be required in the event that the non-assigning party reasonably determines that the assignee will not have sufficient capital or assets to perform its obligations. All terms and provisions of this Agreement shall be binding on the benefit of the parties and their respective transferees, successors and assignees.
21. Dispute Resolution. Any controversies arising out of or relating to the agreement or the interpretation or performance thereof shall be settled by binding arbitration in the Borough of Manhattan, New York. Arbitration shall be decided before a mutually agreed upon arbitrator who is a member of the American Arbitration Association, the cost of which shall be born equally by the parties. Judgment upon any award rendered by the arbitrator(s) may be entered in any court having jurisdiction.
22. Severability. In the event that any one or more of the provisions in this agreement or any Schedule of Work is held to be invalid or otherwise unenforceable, the enforceability of the remaining provisions shall be unimpaired.
23. Governing Law. The law of the State of New York shall govern the construction, validity, and interpretation of this Agreement and the performance of its obligations.
24. Attorneys’ Fees and Costs. In any action involving the enforcement or interpretation of this Agreement, the prevailing party, whether client or Consultant, shall be entitled to its reasonable attorney’s fees and expenses, including such fees and expenses incurred in connection with any appeals, in addition to such other relief as may be provided for by law.
25. Notices. All legal notices shall be in writing and shall become effective when delivered by hand or via certified mail, postage prepaid, return receipt requested.
26. Entire Agreement. This Agreement may be executed in one or more counterparts, each of which shall be considered an original, but all of which together shall constitute one and the same instrument. This Agreement together with all appendences, attachments, other agreements, schedules and exhibits hereto constitutes the entire Agreement and supersedes and replaces all prior oral or written statements, negotiations, proposals, or communications not expressly set forth herein.
27. Authorization to Sign Agreement. Each party acknowledges that the person signing this Agreement and each Schedule or annexure hereto on its behalf is authorized to do so and may bind such party to all of the terms and conditions contained herein, and represents and warrants that such person is acting within the scope of his or her authority as an officer, director, or duly authorized agent or employee of such party.
