Professional Managed Service Provider Agreement

PROFESSIONAL MANAGED SERVICE PROVIDER AGREEMENT

This Professional Managed Service Provider Agreement ("Agreement") is made and entered into as of by and between Provider Name: with principal place of business at and Client Name: with principal place of business at .

RECITALS

WHEREAS, Provider is engaged in the business of delivering managed information technology services, maintenance, monitoring and related professional support as described in this Agreement; and

WHEREAS, Client desires to retain Provider to perform managed services for Client's information systems and Provider is willing to perform such services on the terms and conditions set forth herein; and

WHEREAS, the parties intend that the scope, fees, performance standards and allocation of risks be set forth in this Agreement and any statement of work executed under this Agreement.

NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. DEFINITIONS

1.1 "Services" means the managed services, support, maintenance, monitoring and other professional services to be provided by Provider to Client as described in an executed Statement of Work ("SOW") or Service Schedule. 1.2 "Confidential Information" means information disclosed by one party to the other that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. 1.3 Terms used but not defined in this Agreement shall have the meanings customarily ascribed to them in the managed services industry.

2. SCOPE OF SERVICES

2.1 Provider shall perform Services set forth in one or more SOWs executed by both parties. Each SOW shall identify deliverables, service levels, pricing, term and any additional terms applicable to that SOW. Services shall be performed in a professional and workmanlike manner consistent with prevailing industry standards.

3. TERM AND TERMINATION

3.1 Term. The initial term of this Agreement shall commence on the Effective Date and continue for a period of months, unless earlier terminated as provided herein. Thereafter this Agreement shall automatically renew for successive periods of months unless either party provides written notice of non-renewal at least days prior to the end of the then-current term.

3.2 Termination for Cause. Either party may terminate this Agreement for material breach by the other party that remains uncured for thirty (30) days after delivery of written notice specifying the breach; provided that breaches of confidentiality, unauthorized use of Client Data or persistent failure to meet service levels may be cured within a shorter cure period as set forth in the applicable SOW.

3.3 Termination for Convenience. Client may terminate a specific SOW for convenience upon sixty (60) days' prior written notice and payment of all fees for Services performed through the effective date of termination and any reasonable wind-down costs as set forth in the applicable SOW.

4. FEES, INVOICING AND PAYMENT

4.1 Fees. Client shall pay Provider the fees set forth in each SOW. Except as otherwise provided in a SOW, fees are due within days from invoice date. Overdue amounts shall accrue interest at the lesser of 1.5% per month or the maximum permitted by law.

5. SERVICE LEVELS; REMEDIES

5.1 Service Levels. Provider shall use commercially reasonable efforts to meet the service levels defined in each SOW. For material failures to meet agreed service levels, Client's sole and exclusive remedy shall be service credits as specified in the applicable SOW. Service credits are Client's exclusive remedy for failure to meet service levels except as expressly provided in Section 11 (Limitation of Liability).

5.2 Exclusions. Service level measurements shall exclude downtime or failures caused by acts or omissions of Client, third-party vendors, force majeure events, or scheduled maintenance for which Provider provides advance notice as set forth in the SOW.

6. CONFIDENTIALITY

6.1 Confidentiality Obligations. Each party shall maintain the confidentiality of the other party's Confidential Information and shall not use or disclose such Confidential Information except to perform obligations under this Agreement or as required by law. Each party shall protect Confidential Information with at least the same degree of care it uses to protect its own confidential information, but no less than a reasonable standard of care.

6.2 Exceptions. Confidential Information does not include information that is or becomes publicly available other than through a breach of this Agreement, was known to the receiving party prior to disclosure, or is independently developed without use of the disclosing party's Confidential Information.

7. DATA SECURITY AND PRIVACY

7.1 Data Protection. Provider shall implement and maintain administrative, technical and physical safeguards appropriate to the nature of Client Data to protect against unauthorized access, disclosure, alteration or destruction. Provider shall follow accepted industry practices and comply with applicable data protection laws in the performance of Services.

7.2 Breach Notification. In the event of a confirmed security breach affecting Client Data, Provider shall notify Client without undue delay and, in any event, within hours of discovery, provide details of the incident, mitigation actions and recommended next steps.

8. INTELLECTUAL PROPERTY

8.1 Client Materials. All data, content and materials provided by Client or collected on behalf of Client in the course of the Services ("Client Materials") remain the sole property of Client. Provider shall not acquire any right, title or interest in Client Materials except as necessary to provide the Services.

8.2 Provider Tools. Provider shall retain all right, title and interest in Provider's pre-existing tools, methodologies, know-how, software and processes used to deliver the Services ("Provider Tools"). Provider grants Client a non-exclusive, non-transferable license to use Provider Tools only to the extent embedded in deliverables and solely for Client's internal use as contemplated by this Agreement.

9. WARRANTIES; DISCLAIMER

9.1 Mutual Warranties. Each party represents and warrants that it has full corporate power and authority to enter into this Agreement and to perform its obligations hereunder.

9.2 Provider Warranty. Provider warrants that it will perform Services in a professional and workmanlike manner consistent with industry standards. Provider's sole obligation and Client's exclusive remedy for breach of this warranty shall be for Provider to re-perform the nonconforming Services at Provider's expense.

9.3 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

10. INDEMNIFICATION

10.1 Provider Indemnity. Provider shall indemnify, defend and hold Client harmless from and against any third-party claims alleging that Provider Tools or Provider's performance of the Services infringe a third party's intellectual property rights, provided that Client promptly notifies Provider of such claim and provides reasonable cooperation and control of the defense to Provider.

10.2 Client Indemnity. Client shall indemnify, defend and hold Provider harmless from and against claims arising out of Client's use of the Services, Client Materials, Client's negligence or willful misconduct, or Client's breach of this Agreement.

11. LIMITATION OF LIABILITY

11.1 EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, LOSS OF BUSINESS OR LOSS OF DATA.

11.2 The aggregate liability of each party for direct damages arising out of or related to this Agreement shall not exceed the total fees paid or payable by Client to Provider under the SOW giving rise to the claim in the twelve (12) months prior to the event giving rise to liability.

12. INSURANCE

Provider shall maintain commercial general liability insurance and professional liability/errors & omissions insurance in amounts customary for providers of similar services and shall provide certificates of insurance upon Client's request.

13. NOTICES

All notices required or permitted under this Agreement shall be in writing and shall be delivered by hand, overnight courier, certified mail (return receipt requested), or email (with confirmation of receipt) to the addresses set forth below or to such other address as a party may designate by written notice.

14. AMENDMENTS; WAIVER; COUNTERPARTS

14.1 This Agreement may be amended only by a written instrument signed by authorized representatives of both parties. 14.2 No waiver of any provision shall be effective unless in writing and signed by the waiving party. A waiver of any breach shall not constitute a waiver of any subsequent breach. 14.3 This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.

15. GOVERNING LAW; ENTIRE AGREEMENT; SEVERABILITY

15.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state specified below without regard to its conflicts of law principles.

15.2 Entire Agreement. This Agreement, together with all SOWs and exhibits expressly incorporated herein, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, whether written or oral.

15.3 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.

16. MISCELLANEOUS

16.1 Relationship of the Parties. Provider is an independent contractor and nothing contained in this Agreement shall be construed to create a partnership, joint venture, employer-employee or agency relationship between the parties. 16.2 Subcontracting. Provider may engage subcontractors to perform portions of the Services provided that Provider remains responsible for the performance of its obligations under this Agreement.

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