Master Service Agreement

This Agreement is between Pegasus Technology Solutions, LLC a Texas company (sometimes referred to as “we,” “us,” “our, OR “Provider”), and Our Clients (sometimes referred to as “you,” “your,” OR “Client”), effective immediately. The parties agree as follows:

STATEMENT OF SERVICES

Service Attachments
The services to be delivered by Provider (the “Services”) and the fees for those Services, and the specific terms applicable to those Services are described in one or more Service Attachments, Documents, Change Orders and/or Quotes (“Service Documents”) referencing this Agreement. The Services we will deliver to you are limited to only those Services specifically identified in the Service Documents. Provider has no obligation to determine the need for or to provide any services not included in a Service Documents. In some cases, you may ask us to deliver services outside the scope of any Service Documents. Examples of such services include but are not limited to major system upgrades, new computer, machine or device setup, network changes, datacenter moves or setups, or installations. Anytime, there is a change to the Services, we will not be liable or obligated to perform such work until there is a written Change Order or Quote executed to govern the change in Services describing the scope of those services and our fee to deliver them. Installation dates are estimates only. Client shall be responsible for preparation and maintenance of the site for such Services and/or installations, including, but not limited to, providing necessary electrical power and communication lines and proper air conditioning and humidity control. In the event of any conflict between the terms of a Service Documents or Quote and this Agreement, the terms in the Service Documents control. 

FEES FOR SERVICES | PAYMENT TERMS

Service Fees
All fees for Services are set forth in the Service Documents including the Pricing Addendum.

Adjustments to Service Fees
During the term of this Agreement, if the number of users or devices in your environment or the Service or Equipment types or quantities to be covered within the scope of the Service Documents exceeds the numbers, types or quantities previously ordered, a Change Order or Quote shall be executed evidencing the scope changes and the fees owed. Similarly, if the number of users or devices in your environment or the Service or Equipment types or quantities to be covered within the scope of the Service Documents is less than the numbers, types or quantities previously ordered, upon request, a Change Order or Quote will be executed to adjust the scope of service and fees owed. You shall pay all Service Fees owed as they become due following any adjustment. "User" means Client's employees, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Client (or by Provider upon Client's request). Users do not include any customers of Client or other third parties. “Device” means any equipment included in the Services, whether owned by Client or provided by Provider for Client’s use, including, but not limited to computers, printers, servers, routers, and mobile or handheld microcomputers as well as the software necessary to operate such equipment.

Service Fee Rate Increases
At any time after the parties sign a Service Attachment, we may elect to raise the fees that we charge under the existing Service Documents by issuing a new Pricing Addendum, Service Attachment, Change Order or Quote. In addition, Client will be subject to an annual price increase effective January 1 of each year. We shall give you no less than thirty (30) days notice of any such increase in fees to be charged. Following your receipt of such notice, you may terminate this Agreement without incurring any additional charges or penalties, if any that you ordinarily would incur for such termination so long as the price increase is greater than 10% more than the price for the previous 12 months and the Agreement Term under the MSA and Service Attachment term are both 12 months or less. Otherwise, any termination will result in the termination fee set forth in the provision in the Service Attachment titled “Early Termination by Client Without Cause”. However, if you do not terminate this Agreement then you shall execute the Pricing Addendum, Service Attachment, Change Order or Quote and even if not signed by you shall be bound by its terms and deemed to have accepted it.

Pass-Though Expenses
Client shall pay Provider’s reasonable out-of-pocket expenses, including travel expenses, lodging, meals, or other similar expenses, which may be incurred by Provider in performing Services. Any such “Pass-Through Expenses” will be billed at cost and invoiced monthly.

Payment Terms
Unless otherwise agreed in writing, you shall pay the full amount reflected on any invoice as owed to us on the first (1st) day of the month. You shall pay a late charge of one and one half percent (1.5%) per month or the maximum lawful rate, whichever is less, for all invoiced amounts not paid within ten (10) days following your receipt of that invoice (the “Payment Deadline”). If you dispute in good faith all or any portion of the amount owed to us, or if you otherwise require any adjustment to an invoiced amount, you must notify us in writing, prior to the Payment Deadline, of the nature and basis of the dispute and/or adjustment. If we are unable to resolve the dispute prior to the Payment Deadline, you nevertheless shall pay the entire invoiced amount by the Payment Deadline. If we ultimately determine that such amount should not have been paid, we shall apply a credit equal to such amount on against any Service Fees owed for the following month. Special rates may apply for services requested outside of normal business hours (8 am to 5pm, Monday through Friday) or on holidays. Special rates are one-and-one-half (1.5) times normal hourly rates, with one hour minimum. Holiday hour rates are two (2) times normal hourly rates, with a one (1) hour minimum. Provider reserves the right to charge a 5% collection premium on each invoice where Client fails to maintain an accurate up-to-date, pre-authorized method of payment on Provider’s Wise Pay payment portal. In addition, Provider may recover any fees and expenses incurred in collecting past due accounts including attorney’s fees.

Suspension of Service
If you fail to pay all amounts when due, then upon at least ten (10) business days prior written notice, and in addition to any other remedies available to us, we may suspend Services and withhold Confidential Information (defined below) under this agreement until full payment is made. Following any suspension of Services under this provision, and after you make full payment to us, we shall restore the Services after validating that all components to be monitored and/or managed under any applicable Service Documents comply with our level of security, updates and best practices. You shall pay a “Reactivation Fee” for such restoration equal to $250.00. Our right to suspend Services under this section is in addition to our right to terminate this agreement and to pursue any and all remedies available at law.

Taxes
All charges and fees owed under this agreement are exclusive of any applicable sales, use, excise or services taxes that may be assessed on the provision of the Services. In the event that any taxes are assessed on the provision of any of the Services or on the Equipment, you shall pay the taxes directly to the taxing authority or shall reimburse us for their payment.

 

TERM AND TERMINATION

This Agreement commences on the MSA Effective Date, and it will remain in effect until either party terminates it as permitted below. Either party may terminate this Agreement for any reason or no reason upon at least thirty (30) days advance, written notice given to the other party. However, termination of this Agreement will not, by itself, result in the termination of any Service Documents, and this Agreement will remain in effect notwithstanding any notice of termination unless and until all Service Documents are terminated or expire according to their terms. Further, the right to terminate is subject to the termination fee set forth in the provision in the Service Attachment titled “Early Termination by Client Without Cause”.

INDEPENDENT CONTRACTOR

We will perform all Services solely as an independent contractor and not as an employee, agent or representative of Client

INTELLECTUAL PROPERTY RIGHTS

Provider Works
Unless specifically agreed otherwise in writing, any writing or work of authorship, regardless of medium, created or developed by Provider or Client in the course of performance under this Agreement and related to existing works owned by Provider is a “Provider Work,” is not to be deemed a “work made for hire,” and is and will remain the sole, exclusive property of Provider. To the extent any Provider Work for any reason is determined not to be owned by Provider, Client hereby irrevocably assigns and conveys to Provider all of its copyright in such Provider Work. Client further hereby irrevocably assigns to Provider all of its patent, copyright, trade secret, know -how and other proprietary and associated rights in any Provider Work. You hereby assign to us any and all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or your users relating to any proposed improvements of or modifications to the Services.

License to Provider Works
Provider hereby grants Client a limited, non-exclusive, revocable, royalty-free license to use any Provider Works for Client’s internal business purposes only during the term of this MSA and the term of the Service Documents. You shall not: (i) Modify, copy or create derivative works based on the Services, the Provider Works, or the Provider Technology; (ii) Build a product or service using similar ideas, features, functions or graphics of the Service, or (iii) Copy any ideas, features, functions or graphics of the Service. Additional license restrictions may be set forth in the Service Documents.

 

PROVIDER-SUPPLIED EQUIPMENT

“Equipment” means any computer, networking or telephony equipment, racking, or associated hardware or other equipment (if any) that we install on your premises or that we ship to your location to facilitate the delivery of Services. Equipment does not include any hardware or devices that we may sell to you or that we may procure on your behalf. Provider is and will remain the sole owner of any Equipment, which is provided on a rental or temporary basis only. Our agreement transfers to you no Equipment ownership rights of any kind. We retain sole discretion to determine the appropriate Equipment and associated software and/or technology, if any, to be used at your location, provided that our determination does not materially impair the availability or delivery of Services under this agreement. We also retain sole discretion to determine the necessity of maintenance, repairs and/or improvement of the Equipment. Except as otherwise may be specified in an applicable Service Documents, Provider makes no independent representations or warranties with respect to the Equipment. Any third-party warranties are your exclusive remedies with respect to such Equipment. In the event of an Equipment malfunction, we will take commercially reasonable steps to ensure that you receive the benefit of any manufacturer warranties applicable to the Equipment in use at your location. You shall take reasonable care of the Equipment and shall not damage it, tamper with it, move or remove it, attempt to repair it, or attempt to install any software on it. You are financially responsible, up to the full replacement value of all Equipment, for all damage to or loss of the Equipment used at your location, other than loss or damage caused by Provider. In addition, you shall obtain and maintain insurance with a reputable insurer for the full replacement value of the Equipment. Such policy or policies of insurance must cover the Equipment against loss or damage (including, without limitation, accidental loss or damage) and must name Provider as an insured beneficiary with respect to the Equipment. Upon demand, you must produce evidence that such insurance is being maintained and is valid. You are responsible for providing the necessary power, network connection and appropriate environment to support the Equipment. You shall not remove any sign, label or other marking on the Equipment identifying Provider as the owner of the Equipment. You do not acquire and will not acquire any rights of ownership in the Equipment by virtue of this agreement, and you do not have and will not have, by operation of law or otherwise, any lien or other similar right over or in relation to the Equipment. On termination of any agreement pursuant to which we deliver Equipment, you shall allow Provider and its employees and contractors reasonable access to your premises to remove the Equipment. Alternatively, upon our request, you shall return the Equipment to us via the carrier of our choice, for which we will pay all applicable shipping charges.

PROVIDER-SUPPLIED SOFTWARE

“Software” means any and all software installed on the Equipment or provided by us for installation on your computer equipment to facilitate the delivery of the Services. This agreement does not transfer any right, title, or interest in the Software to you. Your use of the Software is subject to all applicable terms of any end-user license agreement pertaining to the Software, a copy of which will be made available to you upon request. You shall not, and shall not permit any third-party, to: (i) distribute or allow others to distribute copies of the Software or any part thereof to any third-party, (ii) tamper with, remove, reproduce, modify or copy the Software or any part thereof, (iii) provide, rent, sell, lease or otherwise transfer the Software or any copy or part thereof or use it for the benefit of a third-party, or (iv) reverse assemble, reverse compile or reverse engineer the Software or any part thereof, or otherwise attempt to discover any Software source code or underlying proprietary information except as may be permitted by law.

NON-DISCLOSURE AND CONFIDENTIALITY

Confidential Information
During the course of performance under this Agreement or the Service Documents, either party may acquire the other’s proprietary or confidential information. Each of us shall hold all such “Confidential Information” in strict confidence and shall not disclose any such information to any third-party. Confidential Information includes but is not limited to: (a) with respect to Provider, Provider’s unpublished prices for Services, audit and security reports, server/network configuration designs, passwords, all business plans, technical information or data, product ideas, methodologies, calculation algorithms and analytical routines, and other proprietary technology, (b) with respect to Client, content transmitted to or from, or stored by Client on, Provider’s servers, and with respect to both parties, other information that is conspicuously marked as “confidential” or if disclosed in non-tangible form, is verbally designated as “confidential” at the time of disclosure and confirmed as confidential in a written notice. Notwithstanding the preceding provision, Confidential Information does not include (i) Information that at the time of disclosure is, without fault of the recipient, available to the public by publication or otherwise; (ii) Information that either party can show was in its possession at the time of disclosure and was not acquired, directly or indirectly, from the other; (iii) Information received from a third party with the right to transmit same without violation of any secrecy agreement with the other party; or (iv) Information that must be disclosed pursuant to court order or
by law.

Confidential Agreement
No copy of this MSA or the Service Documents, discussions, negotiations, terms or conditions relating to the MSA or the Service Documents, or any other information relating to this MSA and Service Documents may be disclosed to any third-party, except by reason of legal, accounting or regulatory requirements, without the prior written consent of the parties hereto.

Information Releases
Notwithstanding the preceding provisions, Provider may publicly refer to Client, orally and in writing, as a Client of Provider. Any other reference to Client by Provider may be made only pursuant to a written agreement between the parties.

Marketing
Client hereby grants Provider the right to reference Client’s name, industry, logo, and URLs in its marketing literature, website, and/or correspondence to potential new Clients, so as to identify Client as a Client of Provider for marketing purposes and for Provider’s benefit. Such information is not considered Confidential Information subject to non-disclosure.

 

CLIENT COVENANTS AND OBLIGATIONS

Assistance
Client shall provide in a timely and professional manner, and at no cost to Provider, assistance, cooperation, complete and accurate information and data, equipment, access to applicable computer and telecommunications facilities, networks, firewalls, servers, programs, files, documentation, passwords, a suitable work environment, and other resources requested by Provider to enable it to perform the Services (collectively, “Assistance”). Provider shall not be liable for any deficiency in performing the Services if such deficiency results from Client’s failure to provide full Assistance as required hereunder. Assistance includes, but is not limited to, designating a project manager or contact person to interface with Provider during the course of Services.

Software Licensing
Unless specifically otherwise agreed to in an applicable Service Document, Client represents and warrants that Client has title to or has a license or the right to use or modify the software and has a license or right to permit Provider to use, access or modify any software that Client has requested Provider to use, access or modify as part of the Services. It is the Client’s responsibility to independently ensure that ALL software in use by Client is properly licensed, and Client agrees to maintain records of applicable licenses. Provider will not promote the use of, or knowingly support software which is not properly licensed by Client. Assistance with software audits or licensing compliance matters are billable at Provider’s then current hourly rates.

Provider Access
Client shall supply Provider necessary access to its personnel, appropriate documentation and records and facilities in order for Provider to timely perform the Services. Broadband Internet access must be provided. Provider must be provided with remote access (via VPN or other reasonable remote access) to covered equipment. Appropriate cabling to all covered computers and devices must be provided. Appropriate air conditioning and ventilation for all covered computers and devices must be provided, in order to maintain temperature and air quality as specified by the applicable hardware manufacturers. Power surge protection must be provided for all covered computers and devices. Provider must be provided with convenient and timely access to the equipment, adequate working space and facilities within a reasonable distance of the equipment, and access to and use of all information, internal resources, and facilities determined necessary to service the equipment or provide the Services. Client may be required to conduct preliminary diagnostic steps or provide additional information related to a support request, prior to a technician being dispatched to Client's facility. Client must agree to assign one employee to be liaison or contact person to Provider in order to make communications between both parties effective.

Third-Party Obligations
Client is responsible for any third-party vendor or service provider charges and to arrange for disconnection or termination and payment of charges related to the disconnection or termination of any related services with your current carrier(s) or service provider(s). Provider is not responsible for any act or omissions for third-party providers. Provider does not warrant any third -party services. In the event that a claim arises from any act or omission of a third-party provider, you agree that your sole remedy will be against that third-party.

Network Security and Malicious Events
Unless specifically otherwise agreed to in applicable Service Documents, it is Client’s sole responsibility to determine whatever actions deemed necessary to make Client’s data and voice networks and circuits secure from unauthorized access. Hardware firewall must be in place. Wireless data traffic in the environment must be securely encrypted. Provider is not responsible for the security of your network and circuits from third parties, or for any damages that may result from any unauthorized access to your network unless it is part of the Services specified in a Service Document and then still excludes preventing criminal acts by third parties.

You have an affirmative obligation to protect your network environment, and to train your employees for spam, malware, virus protection, and prevention from criminal acts of third parties. Provider is not responsible for criminal acts of third parties, including but not limited to intrusions or unauthorized access of any kind, hackers, phishers, crypto -locker, and any network environment subject to ransom. If a security system for Client’s network is included within the Services to be provided by Provider, Provider agrees to use commercially reasonable efforts to protect Client’s network from malicious attack by computer viruses, computer worms and/or computer hackers (collectively, “malicious activities”). However, Client understands that no security system can guaranty complete protection against Malicious Activities as such attacks often involve the intentional tortuous or criminal action by third parties to invade and injure computer systems. THEREFORE, CLIENT AGREES TO HOLD PROVIDER HARMLESS FROM ANY LOSS, INJURY OR DAMAGE INCLUDING BUSINESS INTERRUPTION TO CLIENT OR ANY HARDWARE, SOFTWARE, AND/OR COMPUTER DATA OF CLIENT CAUSED BY SUCH MALICIOUS ACTIVITIES AND FOR ANY ACTIVITY EFFECTING NETWORK SECURITY ON YOUR ENVIRONMENT RELATED TO THIRD-PARTY CRIMINAL ACTIVITY. ANY COSTS OR FEES TO REBUILD OR SERVICE MACHINES ARE PROVIDED AND SOLD SEPARATELY BY PROVIDER.

Theft of Service
Client shall notify us immediately, in writing, by electronic mail or by calling the Provider customer support line, if Client becomes aware at any time that the Services are being stolen or used fraudulently. Failure to do so in a timely manner may result in the immediate termination of the Services and additional charges billed to you. Client will be liable for all use of the Services using equipment stolen from you and any and all stolen Services or fraudulent use of the Services. Credits will not be issued for charges resulting from fraud that arises out of third parties hacking into any Equipment. This includes, but is not limited to, modem hijacking, wireless hijacking or other fraud arising out of a failure of your internal/corporate procedures. Provider will not issue credit for invoiced charges for fraudulent use resulting from your negligent or willful acts or those of an authorized user of your service. THEREFORE, CLIENT AGREES TO HOLD PROVIDER HARMLESS FROM ANY LOSS, INJURY OR DAMAGE INCLUDING BUSINESS INTERRUPTION TO CLIENT OR FROM ANY THEFT OF SERVICES.

Local Backup
Unless specifically otherwise agreed to in an applicable Service Documents, Client must maintain local backup of all files that are sent to either the cloud or a data backup service. A backup solution must be in place, with backup copies stored offsite. It is the Client’s responsibility to verify that backups are made regularly, as well as the integrity of the backups. Provider shall not be held liable in the event of data loss, backup software failure, backup selection, backup hardware failure, backup media failure, or backup system failure even in the event that Provider was tasked to perform the backups. Client will be solely responsible for lost data for not keeping and providing a local backup of all files to Provider.

Viruses
Anti-virus solution must be in place, updated, with valid update subscription. Provider is not responsible for any harm that may be caused by Client’s access to third party application programming interfaces or the execution or transmission of malicious code or similar occurrences, including without limitation, disabling devices, drop dead devices, time bombs, trap doors, Trojan horses, worms, viruses and similar mechanisms. Any costs or fees to rebuild or service machines are provided and sold separately by Provider.

Advice; Instructions. From time to time, we may provide Client with specific advice and directions related to our provision of the Services or the maintenance or administration of the System. Should these services be declined, Client hereby acknowledges that this is against our advice and Client agrees to hold Provider harmless from any business interruption, data loss, system recovery costs, or other adverse consequences due to Client decision. If Client’s failure to follow or implement our advice renders part or all of the Services economically or technically unreasonable to provide in our discretion, then we may terminate the applicable SOW or Service Attachment for cause by providing notice of termination to Client.

Vendor-Side Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by third-party service providers, third-party licensors, or “upstream” service or product vendors. Client expressly agrees that this paragraph is intended to be as broad as permitted by the laws of the State of Texas and that this paragraph shall be governed by and interpreted in accordance with the laws of the State of Texas.

 

PROVIDER REPRESENTATIONS AND WARRANTY

Service Warranty
Provider warrants that the Services will be performed in a professional and workmanlike manner and as described in an applicable Service Document. All Services will be deemed to be accepted unless Client notifies Provider in writing within thirty (30) calendar days after performance that the Services did not conform to this warranty. Provider promptly will correct any non -conformities and will notify Client in writing that the non -conformities have been corrected.

Disclaimer of Warranty
PROVIDER IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO PERFORMANCE, INTERRUPTION, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR CONTENT OR THIRD-PARTY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. FOR ANY BREACH OF THE SERVICES WARRANTY, YOUR EXCLUSIVE REMEDY AND PROVIDER’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF PROVIDER CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, CLIENT MAY END THE DEFICIENT SERVICES AND PROVIDER WILL REFUND THE FEES FOR THE TERMINATED SERVICES THAT WERE PRE-PAID, IF ANY, FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION. TO THE EXTENT NOT PROHIBITED BY LAW, CLIENT ACKNOWLEDGES THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS BY THE PROVIDER OR ANY THIRD-PARTY VENDORS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THAT PROVIDER AND THOSE THIRD-PARTY VENDORS DISCLAIM ANY AND ALL LIABILITY, WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, ARISING FROM THE SERVICES. PROVIDER MAY LINK TO OR OFFER ANY PURCHASE, ENABLING, OR ENGAGEMENT OF THIRD-PARTY SERVICES, INCLUDING BUT NOT LIMITED TO IMPLEMENTATION, CUSTOMIZATION, CONSULTING SERVICES, E-MAIL, WEB HOSTING, SERVER HOSTING, PHONE SERVICE, AND ANY EXCHANGE OF DATA BETWEEN CLIENT AND ANY THIRD-PARTY SERVICE, IS SOLELY BETWEEN YOU AND THE APPLICABLE THIRD-PARTY SERVICE PROVIDER AND IS SUBJECT TO THE TERMS AND CONDITIONS OF SUCH THIRD-PARTY PROVIDER. PROVIDER DOES NOT WARRANT THIRD-PARTY SERVICES AND IS NOT RESPONSIBLE OR LIABLE FOR SUCH SERVICES OR ANY LOSSES OR ISSUES THAT RESULT FROM SUCH SERVICES. IF YOU PURCHASE, ENABLE OR ENGAGE ANY THIRD-PARTY SERVICE FOR USE IN CONNECTION WITH THE SERVICES, YOU ACKNOWLEDGE THAT PROVIDER MAY ALLOW PROVIDERS OF THOSE THIRD-PARTY SERVICES TO ACCESS YOUR DATA USED IN CONNECTION WITH THE SERVICES AS REQUIRED FOR THE INTEROPERATION OF SUCH THIRD-PARTY SERVICES WITH THE SERVICES. YOU REPRESENT AND WARRANT THAT YOUR USE OF ANY THIRD-PARTY SERVICE SIGNIFIES YOUR INDEPENDENT CONSENT TO THE ACCESS AND USE OF YOUR DATA BY THE THIRD-PARTY SERVICE PROVIDER, AND THAT SUCH CONSENT, USE, AND ACCESS IS OUTSIDE OF PROVIDERS CONTROL. PROVIDER WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY DISCLOSURE, MODIFICATION OR DELETION OF DATA RESULTING FROM ANY SUCH ACCESS BY THIRD-PARTY SERVICE PROVIDERS.

NO HIRING

Client shall not solicit for employment during the term of this Agreement and the term of any Service Document and for twelve (12) months following the termination of this Agreement or all Service Documents, any Provider employee or contractor of Provider with whom Client had direct contact in connection with the Services. Client acknowledges that injury resulting from any breach of this provision would be significant and irreparable and that it would be extremely difficult to ascertain the actual amount of damages resulting from such breach. Therefore, in the event of a violation of this provision, in addition to any other right Provider may have at law or in equity, Client shall make a one-time payment to Provider in the amount of one hundred and fifty percent (150%) of the affected employee's base salary for one year or the contractor’s fee. We agree that such amount is not intended as a penalty and is reasonably calculated based upon the projected costs the injured party would incur to identify, recruit, hire and train suitable replacements for such personnel.

DISPUTE RESOLUTION

This Agreement and the rights of the parties hereunder shall be construed, interpreted, and governed in accordance with the laws of the State of Texas. The Parties agree, acknowledge, and consent to the exclusive venue and personal jurisdiction of the appropriate judicial forum in Collin County, Texas, concerning any action brought out of, or arising under this Agreement or a Service Document, and waive any forum non conveniens argument

Dispute Resolution and Arbitration
Any controversies arising out of the terms of this Agreement or its interpretation shall be first submitted to non-binding mediation with a mediator agreed upon by both Parties. In the event the dispute is not settled via mediation, it shall be settled by arbitration in Collin County, Texas in accordance with the Commercial Rules of the American Arbitration Association, and the judgment upon award may be entered in any court having jurisdiction thereof. Each party shall be responsible for paying its own costs and filing fees associated with mediation and arbitration. In the event that there is any dispute, difference, or claim related to or arising out of this agreement that is resolved either through arbitration or through litigation, the prevailing party in such dispute is entitled to an award of reasonable attorney’s fees incurred while defending or prosecuting such dispute, difference, or claim.

Remedies
Client and Provider agree that any breach or threatened breach by Client of any portions of this Agreement may require injunctive relief as a remedy for Provider. Provider, therefore, shall be entitled to injunctive relief by temporary restraining order, temporary injunction, and/or permanent injunction without the necessity of posting a bond.

Period for Bringing Claim
No claims may be made more than twelve (12) months after the date by which the fault or failure was or should reasonably have been discovered; failure to make such a claim within the twelve (12) month period shall forever bar the claim.

Continued Service
Unless Provider is bringing an action for Client’s failure to make payments for Services not otherwise in dispute, we will continue to provide Services under this Agreement, and Client shall continue to make payments to us, in accordance with this Agreement, during the period in which the parties seek resolution of the dispute. In this regard, Provider reserves the right to charge a 5% collection premium on each invoice where Client fails to maintain an accurate up-to-date, pre-authorized method of payment on Provider’s Wise Pay payment portal.

INDEMNIFICATION

By Client
Client shall defend, indemnify and hold Provider harmless against all costs, expenses, including reasonable attorney’s fees, claims, judgments or settlements associated with the defense or settlement of any claim that: Provider’s use, access or modifications of any software that you have requested that we use, access or modify as part of the Services infringes any patent, copyright, trademark, trade secret or other intellectual property right. Additionally, Client agrees to indemnify and hold harmless Provider of and from any and all claims, demands, losses, causes of action, damages, lawsuits, judgments, including attorney’s fees and costs, related to software licensing and software licensing compliance.

By Provider
Subject to the limitation of liability set forth in the section titled LIMITATION OF LIABILITY, Provider agrees to indemnify and hold Client harmless from and against all loss, liability, and expense including reasonable attorney’s fees caused by Provider’s: (i) grossly negligent or intentionally malicious act; or (ii) breach of any contractual term of the Agreement.

LIMITATION OF LIABILITY

EITHER PARTY’S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO ANY ACTUAL, DIRECT DAMAGES INCURRED AND WILL NOT EXCEED THE GREATER OF (1) THE PROCEEDS OF ANY INSURANCE MAINTAINED BY THAT PARTY TOGETHER WITH ANY SELF-INSURED RETENTION AMOUNTS IN CONNECTION WITH THOSE POLICIES, OR (2) THE AMOUNTS PAID BY CLIENT TO PROVIDER UNDER THIS AGREEMENT OR ANY SERVICE DOCUMENTS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF ANY SUCH CLAIM. IN NO EVENT IS EITHER PARTY TO BE HELD LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES OR CLAIMS, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SAVINGS OR LOST REVENUE, LOST PRODUCTIVITY, LOSS OF DATA, LOSS FROM BUSINESS INTERRUPTION, AND LOSS OF PROGRAMS, DATA OR INFORMATION REGARDLESS OF WHETHER THE FORM OF ACTION IS IN CONTRACT, TORT OR OTHERWISE. PROVIDER WILL NOT BE LIABLE FOR ANY KIND OF AUTHORIZED ACCESS OR ANY HARM THAT MAY BE CAUSED BY YOUR ACCESS TO THIRD-PARTY APPLICATION PROGRAMMING INTERFACES OR THE EXECUTION OR TRANSMISSION OF MALICIOUS CODE OR SIMILAR OCCURRENCES, INCLUDING WITHOUT LIMITATION, DISABLING DEVICES, DROP DEAD DEVICES, TIME BOMBS, LOGIC BOMBS, TRAP DOORS, TROJAN HORSES, WORMS, VIRUSES, HACKERS, PHISHERS, CRYPTO-LOCKERS, RANSOMWARE, AND SIMILAR MECHANISMS. EXCEPT AS SPECIFIED OTHERWISE HEREIN THE PARTIES AGREE THAT THE TOTAL LIABILITY OF THE OTHER PARTY AND THE SOLE REMEDY FOR ANY CLAIMS UNDER THIS AGREEMENT OR A SERVICE DOCUMENT IS LIMITED TO THE AMOUNTS DESCRIBED IN THIS LIMITATION OF LIABILITY SECTION.

INSURANCE

Client Obligations
Client shall maintain a minimum of One Million Dollars (US $1,000,000) in insurance coverage through its respective carriers. Such insurance must include, at a minimum, commercial general liability, workers compensation coverage, and first party cyber liability and Provider shall be listed as an additional insured.

Provider Obligations
Provider agrees to maintain during the Term General Liability insurance with aggregate limits of at least Two Million Dollars (US $2,000,000), professional liability insurance including errors and omissions with aggregate limits of at least Five Million Dollars (US $5,000,000), integrated liability and indemnity with aggregate limits of at least Five Million Dollars (US $5,000,000), destructive programming with aggregate limits of at least Five Million Dollars (US $5,000,000), cyber liability limits of at least Five Million Dollars (US $5,000,000), and Intellectual Property, Disclosure, Reputation Disparagement of at least Five Million Dollars (US $5,000,000). Client’s insurance shall be primary over Provider’s insurance. Client agrees to waive and to require its insurers to waive any rights of subrogation or recovery they may have against Provider, its agents, officers, directors and employees and Provider shall be listed as an additional insured. The obligation to maintain the insurance coverage specified herein does not infer, imply or create any obligations on either party that the actions covered by such policies are part of the scope of services unless that scope of work is specifically set forth in a Service Document. Further, the existence of insurance does not modify the Limitations of Liability or disclaimer of warranties herein.

 

GENERAL

Notices
Except as otherwise provided under this agreement, all notices, demands or requests to be given by any party to the other party shall be in writing and shall be deemed to have been duly given on the date delivered in person, or sent via fax, courier service, electronic mail, or on the date of the third business day after deposit, postage prepaid, in the United States Mail via Certified Mail, return receipt requested, and addressed as set forth on the Service Order.

If to Provider, to:
Pegasus Technology Solutions, LLC
2611 Internet Blvd, Suite 115,
Frisco TX 75034
Attn: Buck Jones

The address to which such notices, demands, requests, elections or other communications are to be given by either party may be changed by written notice given by such party to the other party pursuant to this Section.

Force Majeure
Provider shall not be liable for any failure of performance of the Services and shall be excused from performance of the Services due to the occurrence of events and causes beyond Provider’s reasonable control, including, but not limited to, fire, flood, electric power interruptions, national emergencies, civil disorder, acts of terrorism, riots, strikes, Acts of God, viruses, pandemics or any law, regulation, directive, or order of the United States government, or any other governmental agency, including state and local governments having jurisdiction over Provider or the Services provided hereunder (the “Affected Performance”). Any party whose performance is so affected shall give written notice to the other party describing the Affected Performance. The parties promptly shall confer, in good faith, to agree upon equitable, reasonable action to minimize the impact on both parties of such condition.

Waiver
No delay in exercising, no course of dealing with respect to, and no partial exercise of, any right or remedy hereunder will constitute a waiver of any right or remedy, or future exercise thereof.

Assignment
Neither party may assign this agreement, in whole or in part, or any of its rights or obligations hereunder without the prior written consent of the other party. However, Provider may assign or otherwise transfer its rights, interests and obligations under this agreement without your consent in the event of a change in control of 50% or more of the equity of Provider, the sale of substantially all the assets of Provider, or the restructuring or reorganization of Provider or its affiliate entities. In addition, unless otherwise agreed, we may contract with third parties to deliver some or all of the Services, and no such third-party contract is to be interpreted as an assignment of this agreement. However, we will use commercially reasonable efforts to ensure that any and all such third parties abide by all of the terms of this agreement, and, except as otherwise agreed, we will remain solely responsible for the fulfillment of all of our obligations under this agreement. This agreement is binding upon the parties, their successors and permitted assigns.

Survival
Our respective duties and obligations with respect to proprietary rights, intellectual property rights, and non-disclosure and confidentiality will survive and remain in effect, notwithstanding the termination or expiration of this agreement.

Severability
If any term or provision of this agreement is declared invalid by a court of competent jurisdiction, the remaining terms and provisions will remain unimpaired, and the invalid terms or provisions are to be replaced by such valid terms and provisions that most nearly fulfill the parties’ intention underlying the invalid term or provision.

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

Entire Agreement
This agreement, the Service Attachments, and any other attachments thereto set forth our entire understanding with respect to the subject matter hereof and is binding upon both parties, their successors, and their permitted assigns, in accordance with the terms of this agreement. There are no understandings, representations or agreements other than those set forth herein. Each party, along with its respective legal counsel, has had the opportunity to review this agreement. Accordingly, in the event of any ambiguity, such ambiguity will not be construed in favor of, or against either party.

Service Attachment for Managed Services

This Service Attachment is between Pegasus Technology Solutions, LLC, a Texas company (sometimes referred to as “we,” “us,” “our,” OR “Provider”), and our Clients (sometimes referred to as “you,” “your,” OR “Client”), effective immediately. This Service Attachment is a part of, is subject to, and is governed by the terms of the Master Service Agreement (“MSA”). In the event of a conflict between this Service Attachment, the Quote or a Change Order and the MSA, this Service Attachment, the Quote or a Change Order shall control. Provider offers to its Clients MSP, MSSP, and Cloud Services. The services included by Provider under each is further described below. Client will receive a Quote from Provider indicating the services selected, the number of devices being served, and the fees for those services including the Pricing and Support Addendum attached hereto. Once Client accepts the Quote by executing the Quote and the Service Attachment, the Quote shall be incorporated and become part of this Agreement as if set forth in full herein. In the event of any change in services to Client or the number of devices, the Parties shall execute a Change Order, new Service Attachment or new Quote indicating the change and the price or fees for such change. Until a Change Order, Service Attachment or Quote is executed by the Parties, Provider shall not be responsible for any devices or services not part of an executed Change Order, Service Attachment or Quote. To the extent Provider provides services not covered by a Service Attachment, Change Order or Quote, Client agrees to pay the reasonable value of those services to Provider. The Quote and Pricing and Support Addendum shall be binding as to the pro rata value of those services not identified in a Service Attachment, Change Order or Quote.

MANAGED IT AND SECURITY SERVICES ("MSP")

If the Quote Client received and executed includes MSP Services, then Provider will deliver the following Services to the extent these Services are identified in the Quote (See Remediation Costs for declining MSP Services below).

MANAGED IT SERVICES:

General
• Review Backups - Test Restore Quarterly
• Scheduled System Audits
• Quarterly Business Reviews (QBR) (within 30 business days from EOQ)
• Document software and hardware changes

Systems
• Monitor that essential server services are running 24x7
• Maintain and monitor security patch levels 24x7
• Monitor event logs on covered servers and identify any potential issues
• Monitor hard drive free space on server and clients
• Monitor backups if available
• Alert client to dangerous conditions
   - Memory running low
   - Hard drive showing sign of failure
   - Hard drive running out of disk space
   - Controllers losing interrupts
   - Network Cards report unusual collision activity
• Recover deleted files and corrupted files
• Clear print queues
• Reboot servers
• Run defrag and chkdsk on drives routinely
• Scheduled off time server maintenance
• Install covered software updates
• Create new user accounts, disable/delete old user accounts, create directories, shares and security groups, manage
account policies
• Permissions and file system management
• Set up and change security for users and applications
• Check firewall logs

File Backup & Recovery
• Using any data -backup solution owned by or licensed to Client, Provider will:
• Create and modify backup jobs
• Monitor up to 5 backup jobs
• Monitor the status of all scheduled and on-demand backup jobs
• Notify Client by email of any backup failures and corrective actions
• Remotely perform Client -requested restore operations
• Provide remote administrative services as requested by Client
• Office 365 or Google Mail backups for mailboxes, SharePoint, OneDrive, Gsuite

Applications:
• Exchange user/mailbox management
• Monitor DFS replication
• Disk space management
• Ensure Microsoft Office Applications are functioning properly

End User Support
• Monitor Application Changes
• Asset Inventory Reporting
• Onsite End User Support when required
• Application Support - Outlook, MS Office Support, 3rd party applications
• Basic Moves, Adds and Changes
• Printing Issues
• Onsite Support – As deemed necessary by Pegasus
• Service Desk / Help Desk

New PC Setup / Rebuild PC
• Setup New PC and Migrate User Data
• Rebuild PC Due to End User Error / Downloads / SW Installations

 

PEGASUS SECURITY SERVICES:

Next Generation Firewall Equipment & Software
Provider will support, configure and manage one or more compatible firewall devices – including associated network security software – on Client’s network for Client’s internal business purposes. The Service includes the following (i) Apply updated firmware when applicable; (ii) Configuration changes when needed; (iii) Anti-Virus and anti -spyware protection for firewall devices; and (iv) Firewall Log correlation.

Centrally Managed Anti-Virus Software
The Service includes the following (i) Installation of signature updates and application upgrades and follow-up on alerts forwarded by the anti-virus system; (ii) Provider will update the virus definition files; and (iii) Provider will monitor the quarantine status on all the servers and workstations on the network

Additional Services
Remote device wipe, lock, and recovery when appropriate software is in place to do so.
• Secure remote access (managed VPN)
• Secure system configuration (workstations, servers, networking devises, mobile phones)

Total Security Management
Provider will deliver 24/7/365 security monitoring, intrusion detection & prevention, using the next generation firewall Equipment and Software already deployed at the Basic Service level.
The Service includes the following:
• Centralized security, policy, and network management
• Active device monitoring and alerting
• Intelligent reporting and activity visualization
• Centralized logging
• Tailored reports
• Dashboard summaries
• Automated scheduling of reports
• User-based activity
• Exportable reports in a variety of formats

Customized Security Policies and Procedures
After performing a security assessment and assessing the state of Client’s existing policies and procedures pertaining to network security (if any), Provider will work with Client to prepare a new or revised set of policies and procedures that incorporate cutting edge best practices and that take advantage of the other Services delivered by Provider.

PREMIUM SECURITY SERVICES (MSSP)

If the Quote Client received and executed includes the Managed Security Service Practice, then in addition to all MSP services, Provider will deliver the following Services to the extent these Services are identified in the Quote:

Automatic Vulnerability Patching
Upon discovery of any security vulnerabilities, Provider will automatically deploy appropriate patching to resolve such threats. Monthly reports of patching activities are available upon request.
• Multi-Factor Authentication configuration. May be extra software charges
• Advanced Endpoint Detection and Remediation. Our standard RMM offering includes traditional endpoint protection (i.e.,BitDefender) as well as security protection
• Security Operation Center monitoring and Remediation 24x7
• SIEM (Security Incident & Event Management)
• Firewall management and reporting
• Data Loss Prevention
• Office 365 Monitoring and Reporting
• Onsite Sensors to monitor traffic for Security events.
• Domain Controller, firewall, and endpoint log correlation
• Named support team for security

Remote Coverage
In connection with the Services, Provider will provide to your designated administrator(s), technical contacts or users (1) management of the Services by individuals trained in the Services you have selected, and (2) phone and e-mail support during normal business hours, Monday through Friday, 7:00 am to 6:00 pm, Central time.

Onsite Support
In connection with the Services, upon request, Provider will also deliver support Services onsite at your location, subject to the limitations identified in the attached Pricing and Support Addendum.

Maintenance Windows
Unless otherwise agreed during the on-boarding process, maintenance windows will be on Saturday and Sunday from 12:00 AM to 6:00 AM(U.S. Central time). Routine server and application maintenance and upgrades will occur during maintenance windows, and some applications, systems or devices may be unavailable or non-responsive during such times.

Provider will undertake problem management as soon as the Provider’s monitoring staff becomes aware of an incident. Al incidents, with status or resolution, will be documented by posting updates to the Problem (Incident) Ticket Tracking System assigned to Client ("Problem Tickets").

An assessment of Client’s environment and activity will be performed with the Client on an annual basis. Review of all support requests, network issues and changes will be reviewed. Any changes to Client’s environment will be subject to a new project that will be outlined in a Service Attachment for Project Services.

Minor On-Site Tasks
We may occasionally ask you to perform simple on-site tasks (e.g., powering down and rebooting a computer). You agree to cooperate with all reasonable requests.

Server Upgrades or Repair
You agree not to perform any server upgrades or repairs of these actions without notifying us prior to such action.

Software Media
You shall obtain and supply all necessary software media with installation keys (if any) upon request. Except for any software provided by Provider in connection with the Services, you are solely responsible for obtaining all required software licenses, including all client access licenses, if any for the software products installed on your computers.

Significant Changes to Client’s Network
You will notify us via email immediately of all significant proposed network changes and will provide us with a reasonable opportunity to comment and follow-up regarding those proposed changes before making the same.

Research Regarding Network Changes
Evaluation of network change requests sometimes will require significant research, design, and testing by Provider. These types of requests are not covered by this Service Attachment and will be billed at our then-current rates for time and materials.

Service Fees
For the Services described in this Service Attachment or any Change Order or Quote, you shall pay the Service Fees specified in the attached Pricing and Support Addendum or in that Change Order or Quote. All fees assume that Client equipment is under manufacturer warranty or maintenance contract as required of the Client in the MSA. Provider reserves the right to charge a 5% collection premium on each invoice where Client fails to maintain an accurate up-to-date, pre-authorized method of payment on Provider’s Wise Pay payment portal.

Setup Fee
Prior to the delivery of the Services, Provider will charge a Setup Fee in order to deploy and configure the Services. Provider will identify the Setup Fee in the Quote or on an initial invoice, and Client shall pay the Setup Fee, as set forth in the MSA. Provider shall have no obligation to continue with the delivery of any Services until it receives payment for the Setup Fee. In the event any Setup Fee is waived due to the length of the term of the Agreement or Service Attachment, any right to terminate herein is subject to the termination fee set forth in the provision in the Service Attachment titled “Early Termination by Client Without Cause”.

Adjustments to Service Fee Rates
In addition to any fee increase resulting from changes to the number of Service Units, at any time after the parties sign this Service Attachment, Provider may deliver an updated Fee Schedule identifying any new or modified Service Fee Rates that it will begin charging for any Services provided to Client. Provider shall give Client no less than thirty (30) days notice of any such Fee Schedule updates. In addition, Client will be subject to an annual price increase effective January 1 of each year. Following its receipt of such notice, if any rates previously charged under this Service Attachment will have increased more than 10% over the rates charged during the last 12 months, then Client may terminate this Service Attachment without incurring any additional charges or penalties if any that it ordinarily would incur for such termination so long as the term of both the MSA and Service Attachment is 12 months or less. Otherwise, any termination will result in the termination fee set forth in the provision in the Service Attachment titled “Early Termination by Client Without Cause”.

If the day Services start being provided (“Start Date”) as defined below is delayed because of any failure on your part including but not limited the failure to provide access to your resources in a timely manner, you nonetheless will begin to incur Service Fees, which you shall pay in accordance with this Service Documents and the Master Services Agreement, beginning on the Service Start Date. We are not responsible for failures to provide Services that are caused by the existence of any of the following conditions or otherwise that occur during any period of time in which any of the following conditions exist:

Hardware Malfunction
There is a defect or malfunction in any hardware or software that adversely affects Provider’s ability to perform the Services

Client Resource Problems
There are problems resulting from your resources that are not under our management or control.

Scheduled Maintenance
Scheduled maintenance windows and other agreed upon periods of time that are necessary for repairs or maintenance.

Network Changes
Changes you may have made to the networking environment that were not communicated to or approved by us.

Task Re-prioritization
Problems or failures related to a prioritization or re-prioritization of tasks by Client.

Force Majeure
Problems resulting from a Force Majeure Event as described in the Master Services Agreement.

Agreed Temporary Exclusions
Any temporary exclusion we may request, subject to your approval, to implement changes in applications, environments, conversions or system software.

Client Actions
Problems resulting from your actions or inactions that were contrary to our reasonable recommendations.

Client Responsibilities
Problems resulting from your failure to fulfill any responsibilities or obligations under our agreements.

Internet Connectivity Loss
Loss of Internet connectivity at your location for any reason.

Problem Ticket Management
The time interval between the initial occurrence of a desktop malfunction or other issue affecting functionality and the time Client reports the desktop malfunction or issue to Provider.

Declining Managed IT and Security Services
If Client declines the Managed Security Services offered by Provider, Client agrees to the fullest extent permitted by law to indemnify, defend and hold harmless Provider, and its employees, agents, and representatives from and against all liabilities, claims, suits, complaints, costs, losses, expenses, damages, injury to persons or property, fines, loss of information or property, security loss or causes of action arising out of or related to any cyber security attack, breach, threat or event. To the extent a cyber attack, breach, threat or event occurs, Client agrees that Provider will charge and Client agrees to pay a rate of $250.00 per hour for Provider to perform any remediation work required due to the cyber attack, breach, threat or event.

 

CLOUD SERVICES

If the Quote Client received and executed includes Cloud Services, then Provider will deliver the following Services to the extent these Services are identified in the Quote.

License
Provider hereby grants you the right to access and use only those software-solution and other information technology Services specified on the Pricing and Support Addendum during the Term specified in the Pricing and Support Addendum or the Service Documents. Those Services may be hosted on servers operated by one or more third parties.

Private Cloud:
Provider will: (i) Move all client’s data to a cloud computing platform; (ii) Allow client to have access to data via virtual desktop from client’s own device or device provided by Provider; (iii) Manage the entire cloud environment for client; and (iv) Use licenses for applications provided by a cloud computing platform such as Office 365.

Hybrid Cloud:
Provider will: (i) Move some of client’s data to a cloud computing platform, and in some circumstances have a server remaining on premise at client’s location, at customer’s request. Any Client data being moved shall be agreed to by the parties in writing prior to moving with specific instructions as to identify which data will be moved, managed or unmanaged by Provider. Any Client data being moved or managed shall be specifically identified as to the location of the data on a particular server. Any Client data not being moved, or that is not specifically identified by Client will be considered not managed. Provider shall not be responsible for the identification, classification, or location of the data. Client is solely responsible for its data up to the outermost point of Provider’s firewall with the public internet (the “Demarcation Point”). Once data has been identified, classified, its final location determined, and moved past the Demarcation Point, Provider shall then become responsible for Client data; (ii) Manage the entire cloud environment for client; (iii) Use licenses for applications provided by a cloud computing platform such as Office 365; (iv) Provide hardware that will be owned by Provider and will be licensed using a Service Provider License Agreement (“SPLA”) Agreement.

Private Cloud or Software Subscriptions:
Provider will: (i) Maintain all client’s data on premise at customer’s location; (ii) Manage the entire cloud environment and software subscriptions for client; (iii) Provide unmanaged cloud environment and software subscriptions for client; (iv) Use licenses for applications provided by a cloud computing platform such as Office 365; (v) Provide hardware that will be owned by Provider and will be licensed using a Service Provider License Agreement (“SPLA”) Agreement.

User Credentials
In connection with such access, Provider or any third-party service provider may issue user credentials allowing Client’s users to access the Services. All user credentials are Provider Confidential Information, as defined in the Master Services Agreement. You shall not share Provider user credentials with any third-party without Provider’s prior written consent. User credentials may be distributed to authorized employees to access the Services, but no credentials may be transferred to or shared with a third-party without Provider’s written approval. Provider reserves the right to require that Client changes its users’ passwords at any time, with reasonable notice. All user credentials will automatically expire at the end of the Term.

Restrictions
As between the parties, Provider retains all right, title and interest in and to the Services and their various components, along with all intellectual property rights associated therewith. Other than as expressly set forth herein, no license or other rights in or to the Services are granted to you, and all such licenses and rights are hereby expressly reserved. In addition, you shall not:
• Modify, copy or create derivative works based on the Services or on any Provider Materials;
• Create Internet "links" to or from the Services, or "frame" or "mirror" any content forming part of the Services, other than on your own intranet(s) or otherwise for your own internal business purposes;
• Distribute or allow others to distribute any copies of any Provider Materials or any part thereof to any third-party;
• Rent, sell, lease or otherwise provide any third-party with access to the Services or to any Provider Materials, or to any copy or part thereof, or use the Services or any Provider Materials for the benefit of a third-party; or
• Remove, modify or obscure any copyright, trademark or other proprietary-rights notices that are contained in or on any Provider Materials.
• Reverse engineer, decompile, or disassemble the Provider Materials, except to the extent that such activity is expressly permitted by applicable law.

For purposes of this Agreement, “Provider Materials” means any text, graphical content, techniques, methods, designs, software, hardware, source code, data (including Reference Data), passwords, APIs, documentation or any improvement or upgrade thereto, that is used by or on our behalf to provide the Services.

Third-Party Providers
Some components of the Services or the Provider Materials may be provided through or licensed from third parties, including but not limited to third-party software, products or services (“Third-Party Materials”). Use of all such Third-Party Materials is subject to the terms of the MSA and the Service Documents. Provider, and not those third parties, will provide any and all technical support related to the Services. However, under certain circumstances, pursuant to the terms of applicable third-party license or services agreements, Provider may be obligated to provide certain information to those third parties regarding the Services and/or regarding Client’s identity. Client consents to such disclosures. Where practicable, Provider will make available to Client, for Client’s review, links to or copies of license agreements relating to Third-Party Materials, including their warranties and restrictions. Client understands and agrees that Third-Party Materials will be warranted only by the third-party provider and only as and to the extent set forth in such provider’s license agreement, and that Provider will not be responsible, and makes no warranty, with respect to Third-Party Materials. Furthermore, Provider accepts no responsibility for service failures, data loss, service interruption, third-party service providers, or Third-Party Materials.

Third-party software publishers, including but not limited to, Microsoft will be intended third-party beneficiaries of the Agreement, with the right to enforce provisions of the Agreement and to verify compliance. If any third-party software publisher believes in good faith that Client is not complying with its end-user terms and conditions (“End-User License”), Provider will cooperate in good faith with the third-party publisher to investigate and remedy the non-compliance.

Within thirty (30) days of the termination of this Agreement, Provider shall remove, or cause to be removed, all copies of Client’s Services and/or Provider Materials from the Client’s devices, or otherwise render the software, the Services and/or the Provider Materials permanently unusable. Furthermore, Provider shall require that Client return or destroy all copies of the software, the Services and/or the Provider Materials that it received. Client shall reasonably cooperate and assist, as needed, with all such activities.

No Illegal Use
Client shall not use the Services in any application or situation where the Services would be used for any illegal manner, for any unlawful purpose, or to violate the rights of others.

Restorable Backup
Prior to installation, or accessing, or using any software-solution and other information technology services specified on an applicable Service Document during the Term, Client shall create a full, complete, and restorable electronic backup of all systems which might be affected, in whole or in part, by the installation and/or maintenance of any software-solution and other information technology services specified on an applicable Service Document. During the Term Client shall, and does hereby, hold Provider harmless in the event of any damage to any system and applications software.

Support Services
In connection with the Services, Provider will provide to Client’s designated administrator(s), technical contacts or users (1) management of the Services by individuals trained in the Services Client has selected, and (2) phone and e-mail help desk support during normal business hours, Monday through Friday, 7:00 am to 6:00 pm, Central time.

 

PROVIDER OBLIGATIONS AND WARRANTY

In addition to delivery of the Services, Provider accepts the following obligations:

Data Security & Privacy
In addition to its other confidentiality obligations, Provider shall not use, edit or disclose to any party other than Client any electronic data or information stored by Provider, or transmitted to Provider, using the Services (“Client Data”). Provider further shall maintain the security and integrity of any Client Data under Provider’s direct control. As between Provider and Client, all Client Data is owned exclusively by Client. Client Data constitutes Confidential Information. Provider may access Client's User accounts, including Client Data, solely to respond to service or technical problems at Client's request or as necessary to provide the Services.

Maintenance Windows
Unless otherwise agreed, daily maintenance windows will be from 6:00 PM to 8:00 AM (U.S. Central time). Routine server and application maintenance and upgrades will occur during maintenance windows, and some applications, systems or devices may be unavailable or non-responsive during such times. PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF YOUR PRIVACY, CONFIDENTIAL INFORMATION, AND PROPERTY. PROVIDER HAS NO OBLIGATION TO PROVIDE SECURITY OTHER THAN AS STATED IN A SERVICE DOCUMENT. IN ADDITION, CLIENT ACKNOWLEDGES THAT THIS AGREEMENT CONVEYS NO WARRANTIES, EXPRESS OR IMPLIED, BY ANY THIRD-PARTY VENDORS OF SOFTWARE PRODUCTS MADE AVAILABLE TO CUSTOMER BY PROVIDER AND THAT THOSE VENDORS DISCLAIM ANY AND ALL LIABILITY, WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, ARISING FROM THE SERVICES.

Term
This Service Attachment is effective on the date specified on the Pricing and Support Addendum (the “Service Start Date”). Unless properly terminated by either party and any termination fee paid, this agreement will remain in effect through the end of the term specified on the Pricing and Support Addendum (the "Initial Term").

Renewal
"Renewal" means the extension of any Initial Term specified on a Pricing and Support Addendum for an additional twelve (12) month period following the expiration of the Initial Term, or in the case of a subsequent Renewal, a Renewal term. This Service Attachment will renew automatically for an additional twelve (12) month period upon the expiration of the Initial Term or a Renewal term unless one party provides written notice to the other party of its intent to terminate at least sixty (60) days prior to the expiration of the Initial Term or of the then-current Renewal term.

Early Termination by Client With Cause
Client may terminate this agreement for cause following sixty (60) days advance, written notice delivered to Provider if: (i) Provider fails to fulfill in any material respect its obligations under this agreement and fails to cure such failure within thirty (30) days following receipt of written notice, or (ii) Provider terminates or suspends its business operations (unless succeeded by a permitted assignee under this agreement).

Early Termination by Client Without Cause
If Client has satisfied all of its obligations under all Service Documents, then no sooner than ninety (90) days following the Service Start Date, Client may terminate this Service Attachment without cause during the Initial Term upon sixty (60) days advance, written notice, provided that Client pays Provider a termination fee equal to seventy-five percent (75%) of the recurring, Monthly Service Fees remaining to be paid from the effective termination date through the end of the Initial Term based on the prices identified on the Pricing and Support Addendum or Quote then in effect. Client may terminate this Service Attachment without cause following the Initial Term during any Renewal term upon sixty (60) days advance, written notice, without paying an early termination fee. Pricing is established based on length of the term of the Agreement and early termination causes loss to Provider.

Termination by Provider
Provider may elect to terminate this Service Attachment upon thirty (30) days advance, written notice, with or without cause. Provider may suspend the Services upon ten (10) days written notice, if Client violates a third parties end user license agreement regarding provided software, if Client’s action or inaction hinder Provider from providing the contracted Services, or if Client fails to timely pay for the Services.

Effect of Termination
If either party terminates this Service Attachment, Provider will assist Client in the orderly termination of Services, including timely transfer of the Services to another designated provider. Client shall pay us the actual costs of delivering any such assistance. Termination of this Service Attachment for any reason by either party immediately nullifies all access to Provider’s services and equipment. Provider will immediately uninstall any affected software from Client’s devices, and Client hereby consents to such uninstall procedures.

 

Exhibit “A” to Service Attachment

PRICING AND SUPPORT ADDENDUM
This Pricing and Support Addendum (“Addendum”) is by and between Pegasus Technology Solutions, LLC, (“Provider”) and _________________ (“Client”), pursuant to the terms of the Service Attachment (the “Service Attachment”) and/or Quote signed by the parties. This Addendum is a part of, is subject to, and is governed by the terms of the Service Attachment, and, when signed by the parties, it takes the place of any other pricing and support addendum or Quote previously signed by the parties. The Initial Term of this Agreement shall be 36 months.

Support Services
Following receipt of any notification that a support-related problem within the scope of the Service Attachment has occurred Provider shall use reasonable best efforts to begin problem management within the response time targets identified below. All incidents, with status or resolution, will be documented either via regular email updates to the Primary Client Contact (identified below) or by posting updates to the ticket tracking system assigned to Client.

Response Times
The following table shows the targets of response times for each priority level:

Trouble	Priority	Response Time
Service not available (all users and functions unavailable).	1	Within 1 Business Hour
Significant degradation of service (large number of users or business critical functions affected)	2	Within 2 Business Hours
Limited degradation of service (limited number of users or functions affected, business process can continue).	3	Within 4 Business Hours
Small service degradation (business process can continue, one user affected).	4	Within 24 Business Hours

† - Stated Response Times represent a service goal and not a guarantee. Provider’s ability to implement a solution to a reported problem may depend on input or information from Client or from third parties beyond its control, including Client’s IT vendors.

Service Fees
This is a Managed Services contract. Customer will be billed monthly for the Service. Customer also will be billed an initial Setup Fee equal to one month's scheduled billing to cover the setup and initiation costs of the Service unless otherwise specified in the Quote. Additional work or hours to be completed as part of a Change Order or Quote, if any, may also be billed monthly as specified in the Service Document. The quote below details the setup (non-recurring) and monthly (recurring) fees associated with the Services to be delivered under the Service Attachment as of the Service Start Date: Client will be subject to an annual price increase effective January 1 of each year.

A flat rate fee of $550 per Workstation Setup shall be incorporated into the monthly invoice. A "Workstation Setup" is defined as the configuration of any individual on a laptop or desktop device. It is understood that in the event a Workstation Setup is necessitated by an unforeseen outage, system failure, or other catastrophic incident, Pegasus assumes full responsibility for absorbing associated costs.

Quote
The Master Service Agreement is designed to establish the general relationship terms between the Parties. The Service Attachment then outlines the services to be provided within each category of services identified in the Quote. The Quote more specifically describes the services and cost and due to its specificity shall control over all other agreements between the Parties as to the services to be provided and the cost. For example, certain services identified in the Service Attachment as included within a category may not be included and/or may be specifically excluded in the Quote. Thus, the Quote shall be the controlling document between the Parties in the event of a conflict and shall control as to the actual services to be provided and the cost for the same. If the Quote does not contain any limitation or specificity but instead references a category of services, then Client shall receive all of the services in the Service Attachment under that category as set forth therein.

Project Services / Statement of Work
Any work not provided in a Service Document, Client agrees to pay Providers then current managed service hourly rate of $175 per hour.

Invoice Schedule
Client will be invoiced monthly on the first of each month. Payment is due on the first of each month. Payment must be made via ACH or Credit Card using a Wise-Pay account provided by Pegasus. Provider reserves the right to charge a 5% collection premium on each invoice where Client fails to maintain an accurate up-to-date, pre-authorized method of payment on Provider’s Wise Pay payment portal. If the client chooses to use a credit card, they will be assessed a 3.5% transaction fee each month. The client will receive an email to set up their Wise-Pay account with this information. Payment will not be accepted in any other form using any alternative method. If payment is not received by the 10th of the current month, services may be suspended. ­­­­

MASTER SERVICE AGREEMENT FOR STAFFING

This Agreement is between Pegasus Technology Solutions, LLC a Texas company (sometimes referred to as “we,” “us,” “our,” OR “Provider”), and our Clients (sometimes referred to as “you,” “your,” OR “Client”), effective as of the date signed below by both parties (the “MSA Effective Date”).

STRUCTURE OF THE AGREEMENT

The Agreement consists of the provisions set forth in (i) the “Master Services Agreement” (“MSA”) and (ii) any Service Attachment, statement of work or assignment order executed pursuant to and in accordance with the terms of this Agreement, including the exhibits, appendices and schedules referenced therein or attached thereto (“Service Attachment”, “SOW” or “Assignment Order”), collectively referred to as the Agreement (“Agreement”). Each Service Attachment or SOW will include a description of the services to be provided by Pegasus Technology Solutions LLC on behalf of Client (“Services”) and any Client obligations in connection with the Services. In the event of a conflict between the terms and conditions of a Service Attachment, SOW and this MSA, the SOW or Service Attachment and Quote will control over any provision of the MSA.

Payment
Client agrees to pay Pegasus Technology Solutions LLC for its services and any other costs or fees at the rate(s) set forth in each Service Attachment or SOW. Payment must be made via ACH or Credit Card using a Wise-Pay account provided by Pegasus Technology Solutions LLC. Pegasus will invoice Client weekly at the address set forth above, except as otherwise provided in a Service Attachment or SOW. Any late invoicing by Pegasus Technology Solutions LLC will not affect Client's obligation to pay for services rendered. Provider reserves the right to charge a 5% collection premium on each invoice where Client fails to maintain an accurate up-to-date, pre-authorized method of payment on Provider’s Wise Pay payment portal.

Term and Termination
The Agreement will begin on the Effective Date and will continue in force until it is terminated six (6) months after the effective date. Either Party may terminate this Agreement without cause upon thirty (30) days written notice to the other Party. In addition, either Party will have the option to terminate this Agreement or any applicable SOW immediately upon notice to the other Party, if the other Party breaches any of its material duties or obligations under this Agreement and does not cure such breach within thirty (30) days after notice thereof, or if the other Party declares or becomes bankrupt, dissolves or is subject to a material deterioration in creditworthiness or fails to make any payments within the time periods specified in this Agreement. Upon termination of this Agreement, Pegasus Technology Solutions LLC will promptly provide an invoice to Client for all fees incurred by Client under this Agreement and Client will pay the amounts set forth on the invoice within thirty (30) days of receipt.

Confidential Information
Both Parties acknowledge that they may receive information that is proprietary or confidential to the other Party or its affiliated companies and their clients. During the term of this Agreement and for three (3) years thereafter, both Parties agree to take reasonable measures to hold such information in strict confidence and not to disclose such information to third parties or to use such information for any purpose whatsoever other than performing hereunder or as required by law. Upon written request by the disclosing Party, the receiving Party will return (or, if requested, destroy) the confidential information of the disclosing Party in the possession of the receiving Party at the time of termination or expiration.

Intellectual Property Rights
Any discoveries, inventions, concepts or ideas, and modifications thereof, made or conceived pursuant to an Assignment Order, is a “work made for hire” and Client retains all right, title and interest in and to any and all such “work made for hire.” Pegasus Technology Solutions LLC retains all right, title and interest in and to any and all business processes, methodologies, analysis frameworks, systems, patents, trademarks, service marks, business names, copyright, trade secrets, inventions, discoveries, concepts, ideas, works of authorship, software, computer programs, modules, data, documentation, manuals, guidelines, database rights, designs, drawings, test results, tools, confidential information and skills, and all modifications thereof, owned, developed by or licensed to Pegasus Technology Solutions LLC, prior to or independently from this Agreement (“Pegasus Technology Solutions LLC Background Materials”). Client retains all right, title and interest in and to any and all business processes, methodologies, analysis frameworks, systems, patents, trademarks, service marks, business names, copyright, trade secrets, inventions, discoveries, concepts, ideas, works of authorship, software, computer programs, modules, data, documentation, manuals, guidelines, database rights, designs, drawings, test results, tools and confidential information, and all modifications thereof, owned, developed by or licensed to Client (“Client Materials”). Except for Pegasus Technology Solutions LLC Background Materials, Pegasus Technology Solutions LLC hereby assigns all of its rights, title, and interest in and to the Deliverables identified in a SOW to Client and Client retains all right, title and interest in such Deliverables.

Insurance
Pegasus Technology Solutions LLC will maintain in force during the term of this Agreement insurance coverage as follows: (i) Employers Liability Insurance with limits of at least $500,000 for each accident or disease; (ii) Commercial General Liability and Property Damage Insurance, including coverage for products and completed operations, with limits of at least $2,000,000 for each occurrence; (iII) Excess Automobile Liability Insurance, with limits of at least $1,000,000 for each occurrence and which will apply only to Pegasus Technology Solutions LLC employees who operate their own vehicles.

Indemnification and Limitation of Liability
Except as provided herein, Pegasus Technology Solutions LLC agrees to defend, indemnify and hold the Client and its parent, subsidiaries, directors, officers, agents, representatives and employees harmless of and from any and all claims, losses and liabilities to the extent caused by Pegasus Technology Solutions LLC’s breach of this Agreement or by Pegasus Technology Solutions LLC’s negligence, gross negligence, recklessness or willful misconduct. Except as provided herein, Client agrees to defend indemnify and hold Pegasus Technology Solutions LLC and its parent, subsidiaries, directors, officers, agents, representatives and employees harmless of and from any and all claims, losses and liabilities to the extent caused by Client’s breach of this Agreement or by Client’s negligence, gross negligence, recklessness or willful misconduct. The Parties agree that this Section 7 is the complete agreement between them with respect to any possible indemnification claim, and waive their right to assert any common-law indemnification or contribution claim against the other. The Parties each agree to promptly inform the other after its receipt of any claim, demand, or notice for which indemnification hereunder may be sought, and to cooperate in the investigation and defense of any such claim, demand or notice. NEITHER PARTY SHALL BE LIABLE FOR OR REQUIRED TO INDEMNIFY ANY OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, REGARDLESS HOW CHARACTERIZED AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE FROM THE PERFORMANCE OF THE AGREEMENT OR IN CONNECTION WITH THE AGREEMENT, AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN STRICT LIABILITY OR OTHERWISE). NEITHER PARTY’S LIABILITY FOR DAMAGES OR INDEMNITY UNDER THE AGREEMENT REGARDLESS OF THE FORM OF ACTION WILL EXCEED PER CLAIM AND IN THE AGGREGATE THE TOTAL AMOUNT ACTUALLY PAID BY CLIENT UNDER THE RELEVANT STATEMENT OF WORK DURING THE TWELVE (12) MONTHS PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE FORGOING LIMITATION OF LIABILITY WILL NOT EXTEND TO ANY PAYMENTS FOR SERVICES OWED BY CLIENT.

Miscellaneous 
This Agreement and the exhibits attached hereto contain the entire understanding between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, negotiations and understandings relating to the subject matter hereof. No provision of this Agreement may be amended or waived unless such amendment or waiver is agreed to in writing signed by both Parties. Neither Party may, directly or indirectly, in whole or in part, neither by operation of law or otherwise, assign or transfer this Agreement or delegate any of its obligations under this Agreement without the other Party’s prior written consent, except that either party may assign or transfer the Agreement or delegate any rights or obligations thereunder without consent in connection with a merger, reorganization, transfer, sale of assets or product lines, or change of control or ownership. Neither Party will be responsible for failure or delay in performance hereunder if the failure or delay is due to labor disputes, strikes, fire, riot, war, terrorism, pandemic, acts of God or any other causes beyond the control of the non-performing Party. Except as expressly provided herein, those provisions of the Agreement, which by their terms extend beyond the termination of the Agreement, will remain in full force and effect and survive such termination, including without limitation, Sections 3, 4, 5, 6 and 7. Both Parties shall comply with all laws consistent with their obligations hereunder and applicable to their businesses generally, including but not limited to all applicable laws regarding non-discrimination in employment, fair labor standards and data privacy. Pegasus Technology Solutions LLC may provide Services through affiliates and subcontractors. All notices to a Party required under this Agreement must be in writing to the receiving Party’s address included in the preamble above. This Agreement will be governed in all respects by the laws of the State of Texas, without regard to its conflicts of law principles. The Parties consent to the jurisdiction of any state or federal court in Texas for the resolution of any disputes in connection with this Agreement. The Parties represent and warrant that they have full corporate power and authority to execute this Agreement and to perform their obligations hereunder, and that the person whose signature appears below is fully authorized to enter into this Agreement on behalf of the Party he or she represents. There are no warranties, representations or other agreements between the Parties in connection with the subject matter hereof except as specifically set forth in the Agreement.