ITSourcePro
Master Services Agreement
Last Updated: 05/01/2026
Terms and Conditions
Each Statement of Work (SOW) and/or Quote (as defined herein) issued by ITSourcePro LLC (“ITSourcePro”) is an offer to sell Products and/or Services (as herein defined) to purchaser (“Customer”) and includes, is governed by, and Customer agrees to be bound by, these Terms and Conditions (the “Agreement”). ITSourcePro’s SOW and/or Quote and this Agreement shall be deemed accepted by Customer upon ITSourcePro’s receipt of a purchase order or a signed SOW. Acceptance of ITSourcePro’s SOW and/or Quote and this Agreement is expressly limited to the terms contained in the SOW and/or Quote and this Agreement.
Online Posting and Acceptance. If ITSourcePro makes this Agreement available online, then (a) Customer may accept this Agreement by electronically indicating acceptance (for example, by clicking an “I agree” button or similar mechanism) or by submitting an order, purchase order, SOW, Quote acceptance, or other request for Products and/or Services that references this Agreement; and (b) ITSourcePro may update the online version of this Agreement from time to time. Unless a different version is expressly incorporated into a signed SOW or Quote, the version in effect on the date Customer accepts a Quote or SOW (or otherwise orders Products and/or Services) will govern that transaction.
Customer and ITSourcePro are sometimes referred to individually in this Agreement as a “Party” and collectively as the “Parties.”
1. DEFINITIONS
Any capitalized term which is defined in this Agreement shall have the same meaning when used in any Statement of Work, unless the language or context requires otherwise. SOW-specific definitions, if any, shall be included in the applicable SOW, and shall apply only with respect to such SOW. As used in this Agreement:
“Agreement” means this Master Services Agreement and all Statements of Work, schedules, and attachments attached hereto or to or otherwise made a part of this Agreement.
“Confidential Information” means any information furnished by Discloser to Recipient during the term of this Agreement, including, without limitation, pricing, methods, processes, financial data, lists, statistics, software, systems or equipment, programs, research, development, strategic plans, operating data, or related information of each of the parties and/or its or their customers and suppliers, concerning past, present, or future business activities of said entities. This Agreement is the Confidential Information of ITSourcePro. All other Confidential Information must be clearly designated as “Confidential.” Information provided orally will be considered confidential only if a written memorandum of such information clearly designated as marked “Confidential” is delivered to Recipient within thirty (30) days of the Disclosure. As to any particular Confidential Information, “Discloser” means the Party disclosing the Confidential Information and the “Recipient” means the Party receiving the Confidential Information.
“Content” means information, software, Customer Data, and other data including, without limitation, HTML files, scripts, programs, recordings, sound, music, graphics, and images that Customer or any of its Users create, install, upload, or transfer in or through a Customer device or Customer’s network.
“Customer Components” means the hardware, software, other products, and other Content including, without limitation, those specified in a SOW as being provided by Customer.
“Customer Data” means all data and information about Customer’s business(es), customers, employees, operations, facilities, products, markets, assets or finances that ITSourcePro obtains, creates, generates, collects, or processes in connection with its performance of Services and is stored in any Customer device or on the Customer network.
“Disclosure” means the release, publication, or dissemination of Confidential Information by a Party and excludes the release, publication, or dissemination of Confidential Information by a third party.
“Effective Date” means, the first date a SOW or Quote is accepted by Customer.
“PCR” means a project change request (change order) signed by both Parties authorizing a change in the scope of the Services.
“Products” means any order for software, hardware, or Resold Services (“Products”) made by Customer pursuant to a quotation issued by ITSourcePro (“Quote”). Orders for Products are governed by this Master Services Agreement and Addendum A, “Terms Specific to Product Sales Only” attached hereto and incorporated herein by reference.
“Required Consents” means any consents, licenses, or approvals required to give ITSourcePro, or any person or entity acting for ITSourcePro under this Agreement, the right or license to access, use, and/or modify in electronic form and in other forms, including without limitation, derivative works, the Customer Components and Content.
“Services” means the information technology services to be delivered by ITSourcePro under this Agreement as specified in any Statement of Work and does not include Third Party Services.
“Statement of Work” or “SOW” shall have the meaning ascribed to it in Section 2.1 (Agreement Structure).
“Third Party Services” means the information technology services to be delivered by a third party under this Agreement as specified in any Statement of Work.
“User” means any entity or individual that receives or uses the Services, or the results or products of the Services, through Customer.
2. GENERAL
2.1. Agreement Structure. This Agreement contains general contractual terms for all information technology services to be provided by ITSourcePro. The specific information technology services that ITSourcePro will provide, applicable pricing and payment terms, service level agreement, if any, and other transaction-specific provisions will be agreed upon through statements of work (each a “Statement of Work” or “SOW”). Each SOW shall be signed by both Parties and will be deemed to incorporate all of the provisions of this Agreement by reference. Each SOW will be a separate agreement between ITSourcePro and Customer.
2.2. Order of Precedence. In the event of any inconsistencies between the terms of this Agreement and the terms of any Statement of Work, the terms of this Agreement shall control. The Parties may specify in the applicable SOW that a particular provision of the SOW is to supersede a provision of this Agreement, in which case the superseding SOW provision(s) shall be applicable only to such SOW and shall be effective for such SOW only if such provision(s) expressly references the applicable Section of this Agreement that is to be modified and clearly states that such provision(s) supersedes the conflicting or inconsistent provision in this Agreement. Unless expressly agreed to in writing by ITSourcePro, ITSourcePro rejects any terms and conditions contained in Customer’s documents (e.g., purchase orders or other order documents) that purport to modify or add to this Agreement.
3. SERVICES
3.1. Scope of Services. Subject to the terms and conditions in this Agreement and the applicable SOW, ITSourcePro will use commercially reasonable efforts to perform the Services described in the applicable Statements of Work.
3.2. Designated Contact Persons. Each Party shall designate an individual who will be a primary point of contact and will have the authority to act and make decisions in all aspects of the Services, including PCRs, on behalf of their company. Customer shall make available all technical matter, data, information, operating supplies, and computer system(s), as reasonably required by ITSourcePro. Either Party may change its designated contact person by providing written notice to the other Party.
3.3. Changes. In the event Customer wishes to add additional programs, applications, network devices of any kind, or otherwise requests a change in the scope of the Services, then Customer shall present its request for such alterations of its network to ITSourcePro for scoping. No alterations will be permitted under this Agreement without a signed PCR.
4. FEES AND PAYMENT TERMS
4.1 Invoices and Payment; Suspension for Non‑Payment
Managed services fees shall be invoiced monthly in advance unless otherwise stated in the applicable SOW and shall be due within thirty (30) days of the invoice date. All other fees shall be invoiced in accordance with the applicable SOW and are due within thirty (30) days of the invoice date.
Amounts not paid when due may, at ITSourcePro’s option, accrue interest at the rate of one percent (1%) per month or the maximum rate permitted by law, whichever is less.
If Customer fails to pay undisputed amounts more than forty‑five (45) days past the due date, ITSourcePro may, upon at least fifteen (15) days’ prior written notice, suspend the affected Services in a commercially reasonable manner until such amounts are paid in full.
ITSourcePro will use reasonable efforts to limit any suspension to non‑essential Services where practicable; however, Customer acknowledges that any suspension may result in reduced system functionality. ITSourcePro shall not intentionally delete Customer Data as a result of suspension for non‑payment.
Except in cases of ITSourcePro’s gross negligence or willful misconduct, ITSourcePro shall not be liable for damages arising from suspension of Services due solely to Customer’s failure to pay undisputed amounts when due.
5. INFORMATION SECURITY
5.1 Security Program
ITSourcePro shall maintain administrative and technical safeguards that are commercially reasonable and appropriate to the scope of Services provided under this Agreement and any applicable SOW, taking into account the shared-responsibility nature of Customer systems and third-party platforms.
5.2 Security Incidents and Notification
ITSourcePro shall notify Customer without undue delay after ITSourcePro’s reasonable determination that a confirmed unauthorized access occurred as a direct result of a breach of ITSourcePro-controlled security measures.
ITSourcePro shall reasonably cooperate with Customer in investigating, mitigating, and remediating the Security Incident. This Section does not apply to incidents caused exclusively by Customer systems, credentials, or third‑party services not managed by ITSourcePro.
5.3 Audits
Upon reasonable advance notice and no more than once annually, Customer may review ITSourcePro’s relevant written security policies or independent third‑party security attestations applicable to the Services.
6. CUSTOMER RESPONSIBILITIES
6.1. Content. Customer is solely responsible for: (a) all Content including without limitation, its selection, creation, design, licensing, installation, accuracy, maintenance, testing, backup and support; (b) all copyright, patent and trademark clearances in all applicable jurisdictions, and usage agreements for any and all Content; (c) the selection of controls on the access and use of Content; and (d) the selection, management, and use of any public and private keys and digital certificates it may use with the Services.
6.2. Required Consents. Customer shall obtain and keep in effect all Required Consents necessary for ITSourcePro to perform all of its obligations as set forth in this Agreement including without limitation, those with internet circuit providers and mobile device carriers. Upon request, Customer will provide to ITSourcePro evidence of any Required Consent. ITSourcePro will be relieved of its obligations to the extent that they are affected by Customer’s failure to promptly obtain and provide to ITSourcePro any Required Consents.
6.3. Software. All software in Customer’s environment must be properly licensed from authorized sources. ITSourcePro will be relieved of its obligations to the extent that they are affected by Customer’s failure to provide properly licensed software specified as being required in any SOW at the level required for ITSourcePro to perform the Services required under this Agreement. Customer grants ITSourcePro, at no charge, the right to use any Customer-owned or developed application software systems required by ITSourcePro to provide the Services specified in any SOW to Customer.
6.4. Security. Unless ITSourcePro is providing security services under a SOW, Customer shall: (a) use reasonable security precautions in connection with its use of the Services, i.e., maintain up‑to-date virus scanning and operating system security patches and firewall protection; and (b) require each User to use reasonable security precautions, i.e., maintain up-to-date virus scanning and operating system security patches and firewall protection. In addition, Customer shall not take any action or install any software that may preclude or impair ITSourcePro’s ability to access or administer its network or provide the Services.
6.5. Encryption. Customer shall encrypt at the application level Confidential Information, Customer Data, and all data that is considered sensitive data or that must be treated as confidential under state or federal law or under Customer's contractual obligations to others. This includes, but is not limited to, Social Security Numbers, financial account numbers, driver's license numbers, state identification numbers, Protected Health Information (as that term is defined in Title II, Subtitle F of the Health Insurance Portability and Accountability Act, as amended (HIPAA) and regulations promulgated thereunder) and Nonpublic Personal Information (as that term is defined in Financial Services Modernization Act of 1999 (Gramm-Leach-Bliley) and regulations promulgated thereunder).
7. CONFIDENTIAL INFORMATION
7.1. Restrictions on Use; Non-Disclosure. Recipient agrees that it will use the same care and discretion to avoid Disclosure of any Confidential Information as it uses with its own similar information that it does not wish to disclose, publish, or disseminate (but in no event less than a reasonable degree of care). Except as otherwise expressly permitted in writing by an authorized representative of Discloser, Recipient agrees that it will not: (a) use the Confidential Information of Discloser for any purpose other than the purpose for which Discloser disclosed the information; or (b) disclose or reveal Confidential Information of Discloser to any person or entity other than its employees, directors, officers, agents, and consultants who (i) have a need to know to further the purpose of this Agreement; and (ii) are subject to legally binding obligations of confidentiality no less restrictive than those contained in this Agreement.
7.2. Exceptions. The obligations set forth in Section 7.1 (Restrictions on Use; Non-Disclosure) shall not apply to Confidential Information that: (a) before the time of its Disclosure, was already in the lawful possession of the Recipient; (b) at the time of its Disclosure to Recipient, was already available to the general public, or after Disclosure to Recipient by Discloser, becomes available to the general public through no wrongful act of the Recipient; or (c) Recipient demonstrates to have been lawfully and independently developed by Recipient without the use of or reliance upon any Confidential Information of the Discloser and without any breach of this Agreement.
7.3. Disclosures Required by Law. If Recipient becomes legally compelled (by deposition, interrogatory, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information, then Recipient shall notify Discloser of the requirement promptly in writing so that Discloser may seek a protective order or other appropriate remedy. If a protective order or other remedy is not obtained, or if Discloser waives in writing compliance with the terms hereof, then Recipient shall furnish only that portion of the information which Recipient is advised by written opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such information.
7.4. Disposal of Confidential Information. Upon termination of this Agreement or upon Discloser’s request at any time, Recipient agrees to promptly return to Discloser all copies of Confidential Information. If return is impossible as to any portion of the Confidential Information, then Recipient shall promptly certify to Discloser that all such Confidential Information of Discloser, including all copies thereof, has been totally and permanently destroyed. ITSourcePro will return to the Customer, all Customer Data in its possession at the date of termination in its then-existing format and on its Customer-supplied media, however, ITSourcePro may keep a copy in accordance with its record retention policy. Any conversion of format or media performed by ITSourcePro in order to discharge its obligations under this Section 7 (Confidential Information) shall be at Customer’s expense.
7.5. Remedies. The Parties acknowledge and agree that a breach of this Agreement by either Party may cause continuing and irreparable injury to the other’s business as a direct result of any such violation for which the remedies at law may be inadequate and that Discloser shall therefore be entitled and to seek to obtain a temporary restraining order and injunctive relief against the other Party, without posting a bond or other security, to prevent any violations thereof, and, in addition, any other appropriate equitable relief.
7.6. The obligations under this Section shall apply during the term of this Agreement and for five (5) years thereafter; provided however, that obligations relating to Customer Data, security practices, credentials, and personally identifiable information shall survive indefinitely or as required by applicable law.
7.7 Data Return and Retention
Upon termination of the applicable Services and receipt of all undisputed fees, ITSourcePro shall, at Customer’s request, make Customer Data reasonably available for retrieval. ITSourcePro may retain copies of Customer Data only as required for legal, regulatory, or insurance compliance and shall continue to protect such retained data in accordance with this Agreement.
8. OWNERSHIP RIGHTS
8.1. Services. ITSourcePro retains all right, title, and interest in the Services and in all improvements, enhancements, modifications, or derivative works thereof including, without limitation, all rights to patent, copyright, trade secret, and trademark. The Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and Customer agrees not to disclose such information to any third party without ITSourcePro’s prior permission. ITSourcePro grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the term of the applicable SOW to use the Services.
8.2. Content. ITSourcePro acknowledges and agrees that all Content, including copyrights, trademarks, database rights, and other intellectual property contained in such Content are owned or licensed by Customer. Customer grants ITSourcePro a license to store, record, transmit, and display the Content solely to perform ITSourcePro’s obligations under this Agreement.
9. REPRESENTATIONS AND WARRANTIES
9.1. By Each Party. Each Party represents and warrants to the other Party that: (a) it has full power and authority to enter into this Agreement and perform its obligations under it; (b) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation (if applicable); and (c) it will comply with laws and regulations applicable to its performance under this Agreement.
9.2. By Customer. Customer represents and warrants to ITSourcePro that: (a) Customer owns, licenses, or otherwise has sufficient rights in the Content and Customer Data to grant the rights granted to ITSourcePro under this Agreement; (b) to Customer’s knowledge, ITSourcePro’s possession and use of the Content and Customer Data as contemplated by this Agreement will not infringe or misappropriate any intellectual property rights of any third party; and (c) Customer will not use, nor will it permit any Users to use, the Services for high‑risk activities (such as operation of nuclear facilities, air traffic control, or life support systems) where the use or failure of the Services could reasonably be expected to lead to death, personal injury, or severe environmental damage.
9.3. By ITSourcePro. ITSourcePro represents and warrants to Customer as follows:
9.3.1. Industry Standards. The Services shall be performed in a good, workmanlike, professional, and conscientious manner by experienced and qualified employees of ITSourcePro according to the generally accepted standards of the industry to which the Services pertain. Services will be deemed accepted by Customer if not rejected for non-conformance in a reasonably detailed writing submitted to ITSourcePro within ten (10) business days of performance of Services. Upon confirmation of the non-conformance, ITSourcePro will use commercially reasonable efforts to take the steps necessary to correct the non‑conformance at no charge to Customer. This is Customer’s sole and exclusive remedy for breach of this warranty.
9.3.2. Service Levels. The Services will meet the technical standards of performance or service levels, if any, set forth in the applicable SOW. Customer’s sole and exclusive remedy for any failure to meet the applicable technical standards of performance or service levels shall be as specified in the applicable SOW.
9.3.3. Staffing Placement Services: ITSourcePro warrants that any consultant provided to Customer will have the qualifications and hold the certifications represented to Customer by ITSourcePro. ITSourcePro makes no other representations or warranties with respect to the staffing placement Services to be provided.
Customer is not authorized to make, and Customer shall not make, any representations or warranties on behalf of ITSourcePro to any third party. Customer shall be solely responsible and liable for any representations or warranties that Customer makes to any third party regarding ITSourcePro, the Services, or any other aspect of this Agreement. ITSourcePro makes no representations or warranties with regard to the Third Party Services and passes through to Customer the terms and conditions for the services delivered by a third party.
9.4. Disclaimer. Except as expressly provided in this Section 9 (Representations and Warranties), each Party disclaims all other representations and warranties of any kind, whether express, implied, statutory, or otherwise, including without limitation any implied warranties of merchantability, fitness for a particular purpose, non‑infringement, and any warranties arising from course of dealing, course of performance, or usage of trade. No employee, agent, or representative of ITSourcePro is authorized to make any additional representations or warranties on behalf of ITSourcePro except in a written agreement signed by an authorized officer of ITSourcePro. Customer acknowledges that services involving networks, third‑party providers, and internet connectivity may be subject to interruptions, outages, latency, and other conditions outside of ITSourcePro’s reasonable control, and ITSourcePro does not warrant that the Services will be uninterrupted or error‑free. For clarity, nothing in this Section 9.4 limits ITSourcePro’s obligations under Section 5 (Information Security) or either Party’s liability to the extent expressly carved out under Section 11 (Limitation of Liability).
10. INDEMNIFICATION
10.1. Indemnification by ITSourcePro. Subject to the terms and conditions in this Agreement, ITSourcePro will, at its cost, (i) defend Customer and its officers, directors, shareholders, employees, agents, successors and assigns (collectively the “Customer Indemnified Parties”) from and against any claim, suit, action, or proceeding (threatened or otherwise) (each a “Claim”) made or brought by a third party against Customer Indemnified Parties to the extent based upon (a) any breach by ITSourcePro of any of its representations and warranties under Section 9.1 (Representations and Warranties. By Each Party); (b) real property damage or personal injury, including death, solely and directly caused by ITSourcePro’s employees or contractors in the course of performance under this Agreement; (c) any breach by ITSourcePro of Section 7 (Confidential Information) to the extent the Disclosure is the result of actions predominantly attributable to ITSourcePro; (d) any uncured breach by ITSourcePro of its obligations under Section 5 (Information Security); and (e) any allegation that Customer’s receipt of the Services under this Agreement infringes any of such third party’s copyrights, or any such third party’s patents issued in the United States as of the Effective Date, or misappropriates any of such third party’s trade secrets (each an “IP Claim”); and (ii) ITSourcePro shall pay any final award of damages (or settlement amount approved by ITSourcePro in writing) paid to the third party that brought any such Claim.
10.2. Indemnification by Customer. Customer will indemnify, defend, and hold harmless ITSourcePro and its officers, directors, shareholders, employees, agents, successors and assigns from any and all liabilities, damages, costs and expenses, including reasonable attorney’s fees and expenses, arising out of any claim, suit or proceeding (threatened or otherwise) made or brought by a third party against ITSourcePro or its officers, directors, shareholders, employees, agents, successors and assigns based upon (a) any breach by Customer of any of its representations and warranties under Section 9 (Representations and Warranties); (b) real property damage or personal injury, including death, directly caused by Customer; (c) any breach by Customer of Section 7 (Confidential Information) to the extent the Disclosure is the result of actions predominantly attributable to Customer; (d) any breach by Customer of its obligations under Section 6.2 (Required Consents) or Section 6.5 (Encryption); (e) any breach by Customer of Section 13.2 (Export Compliance); and (f) any claim that ITSourcePro’s possession, storage, or transmission of the Content or possession or use of the Customer Components, infringes on, violates, or misappropriates any patent, copyright, trademark, service mark, trade secret, or other intellectual property or proprietary rights of a third party.
10.3. Procedure. A Party (or other person) having a right to defense and indemnification under this Agreement (“Indemnified Party”) that desires such indemnification shall tender to the Party having an obligation to defend and indemnify under this Agreement (“Indemnifying Party”) sole control of the defense and settlement of the Claim for which indemnity is sought, provided that the Indemnified Party shall notify the Indemnifying Party promptly in writing of each Claim and the Indemnified Party shall give the Indemnifying Party information and assistance to defend and settle the Claim. The Indemnified Party, at its own expense, shall have the right to employ its own counsel and to participate in any manner in the defense against any claim for which indemnification is sought under this Section 10 (Indemnification). The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of any Claim. In no event shall either Party make any settlement of a Claim, including without limitation, any settlement that involves a remedy relating to admission of liability by, injunctive relief against, or other affirmative obligations by the Indemnified Party without the other Party’s prior written consent, which consent will not be unreasonably withheld, delayed, or conditioned.
10.4. Mitigation for IP Claims. At any time after notice of an IP Claim, or if ITSourcePro believes there is a basis for an IP Claim, ITSourcePro has the right, at ITSourcePro’s sole option and expense, to either (a) procure the right for Customer to continue receiving the Services as provided in this Agreement, or (b) replace or modify the applicable Service with a service that has substantially similar functionality and that ITSourcePro believes would not be subject to the IP Claim. If ITSourcePro deems (a) or (b) not feasible or not commercially reasonable, ITSourcePro has the right to terminate the applicable SOW. In the event of any such termination, ITSourcePro will refund to Customer the unused portion of any amounts paid by Customer for the affected Service. In addition, upon any such termination, Customer shall cease the use of the applicable Service.
10.5. Limitations as to IP Claims. Notwithstanding anything to the contrary, ITSourcePro shall have no obligations or liability under Section 10.1 (Indemnification by ITSourcePro) if the IP Claim is based upon, arises out of, or is related to, in whole or in part, or if any of the following apply: (a) the combination of the applicable Service with any product, software, solution, or service not entirely developed and provided by ITSourcePro, (b) use of the applicable Service outside the scope of the licenses or rights set forth in this Agreement or in violation of any law or any restriction or limitation set forth in this Agreement, (c) Customer’s failure to comply with ITSourcePro’s direction to cease any activity that in ITSourcePro’s reasonable judgment may result in an IP Claim, (d) any allegation by a third party that does not specifically reference a ITSourcePro Service, or that does not reference a feature of function of a ITSourcePro Service, or (e) any IP Claim for which Customer does not promptly tender control of the defense thereof to ITSourcePro.
10.6. Sole Remedy (IP Claims). This Section 10 sets forth Customer’s exclusive remedies and ITSourcePro’s sole obligations and liability with respect to third‑party claims alleging infringement or misappropriation of a third party’s intellectual property rights arising from Customer’s receipt or use of the Services (an “IP Claim”). Except for the defense and indemnification obligations expressly set forth in this Section 10, ITSourcePro has no obligation to defend, indemnify, or hold harmless Customer with respect to third‑party claims.
11. LIMITATION OF LIABILITY
11.1 Except for liability arising from (a) gross negligence or willful misconduct, or (b) a Party’s breach of its confidentiality or data security obligations, neither Party shall be liable for incidental, consequential, special, or punitive damages, including lost profits or loss of data.
11.2. Except for the carve‑outs identified above, ITSourcePro’s total aggregate liability arising from or related to this Agreement shall not exceed the fees paid by Customer to ITSourcePro under the applicable SOW during the twelve (12) months preceding the event giving rise to the claim.
11.3. Non-Managed Systems. ITSourcePro shall not be liable for any damage caused by services, systems, software, or other components that neither it nor its employees, agents or subcontractors furnish or manage pursuant to this Agreement.
11.4. Applicability. The terms in this Section 11 (Limitation of Liability) shall apply to the maximum extent permitted by applicable law. If applicable law precludes a party from excluding liability for certain types of damages for certain acts or omissions or capping its liability for certain acts or omissions, then the terms in this Section 11 (Limitation of Liability) shall apply to not limit liability for such acts and omissions, but will apply for all other acts and omissions.
11.5. Allocation of Risk. Each Party acknowledges that the foregoing damages exclusions and limitations of liability set forth in this Section 11 (Limitation of Liability) reflects the allocation of risk set forth in this Agreement and acknowledges that the other Party would not have entered into this Agreement absent such exclusions and limitations of liability or that the prices paid by Customer for the Services would have been higher.
12. TERM AND TERMINATION
12.1. Term
12.1.1. This Agreement. This Agreement shall commence on the Effective Date and remain in effect until terminated by either party as provided in this Section 12 (Term and Termination).
12.1.2. Statement of Work. The term of each SOW shall be as specified in that Statement of Work.
12.2. Termination for Convenience. Either Party may terminate this Agreement for convenience upon ninety (90) days’ prior written notice. Any active SOWs shall remain in effect through their stated terms unless otherwise expressly provided in the applicable SOW.
12.3. Termination for Breach. Either Party may terminate this Agreement or any individual SOW in accordance with subsection 12.3.1 (Cure) (in certain circumstances where an opportunity to cure must be provided) or subsection 12.3.2 (No Opportunity to Cure) (in certain circumstances where an opportunity to cure is not available).
12.3.1. Cure. If the other Party breaches any material provision of this Agreement or any SOW and fails to cure such breach within thirty (30) days of receipt of notice of such breach from the non-breaching Party (“Cure Period”), then a Party can provide notice of termination. The notice from the non-breaching Party shall specify the basis on which the Agreement or SOW is being terminated, including a description of the breach and how the breach can be cured within the Cure Period. If the breaching Party fails to cure the breach within the Cure Period, then termination shall be effective on the thirty-first (31st) day following receipt of such notice by the breaching Party.
12.3.2. No Opportunity to Cure. If: (a) the other Party breaches any representation or warranty in this Agreement, subject to the limitation set forth in Section 9.3.2 (Service Levels); (b) any representation or warranty is inaccurate, incomplete, false or misleading in any material aspect; or (c) the breach is of a type or nature that is not capable of being cured within such time period (such as, by way of example and not limitation, an obligation relating to Confidential Information), then a Party can provide notice of termination. The notice from the non-breaching Party shall specify the basis on which the Agreement or SOW is being terminated, including a description of any breach. Termination shall be effective immediately upon receipt of such notice by the breaching Party.
12.4. Termination for Financial Insecurity. Either Party may terminate this Agreement and all SOWs upon written notice if the other Party ceases conducting business in the normal course, admits its insolvency, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership or reorganization. Termination shall be effective upon receipt of the written notice.
12.5. Final Payment. Within thirty (30) days after any termination of this Agreement or individual SOW, ITSourcePro will submit to Customer a final itemized invoice for all fees and expense due and owing by Customer. Customer shall pay the invoice in accordance with the language in this document.
12.6. Upon termination and subject to Customer’s payment of all undisputed amounts, ITSourcePro shall provide reasonable cooperation for transition of Services to a successor provider, at ITSourcePro’s then-current professional services rates. ITSourcePro shall not be obligated to provide credentials, access, or migration assistance prior to receipt of payment for such services. Upon notice of termination, Customer agrees to pay a flat Offboarding Fee equal to the highest Monthly Fixed Fee (User costs) invoiced during the twelve (12) months prior to the notice of termination to cover the administrative labor of de-provisioning accounts, archiving data, and coordinating with a successor provider.
12.7. Survival. Those provisions that by their nature should survive termination of this Agreement, will survive termination. Without limiting the generality of the foregoing statement, Sections 8 (Ownership Rights); 9 (Representations and Warranties); 10 (Indemnification); and 11 (Limitation of Liability) shall survive any termination of this Agreement.
13. MISCELLANEOUS
13.1. Force Majeure. Neither Party shall be liable to the other Party for any delay or failure to perform, which delay or failure is due to causes or circumstances beyond its control and without its fault or negligence, including acts of civil or military authority, national emergencies, labor strikes, fire, flood or catastrophe, acts of God, insurrection, war, riots or failure of transportation or a general and/or city-wide power failure. Each Party shall use reasonable efforts to mitigate the extent of the aforementioned excusable delay or failure and their adverse consequences, provided however, that should any such delay or failure continue for more than thirty (30) days, the Agreement may be terminated without liability by the non-delaying Party.
13.2. Export Compliance. Customer agrees to comply with all export and re-export control laws and regulations as may be applicable to any transaction hereunder, including, without limitation, the Export Administration Regulations promulgated by the United States Department of Commerce, the International Traffic in Arms Regulations promulgated by the United States Department of State, and any of the regulations promulgated by the Office of Foreign Assets Control of the United States Department of the Treasury. Customer shall be solely responsible for such compliance with respect to Customer Data and the Content that it provides to ITSourcePro.
13.3. Insurance. During the term of this Agreement, each Party shall maintain commercially reasonable insurance coverage appropriate to its business, including general liability and professional liability insurance. Upon reasonable request, each Party shall provide evidence of such coverage.
13.4. Waiver. The failure of either Party to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any rights and the obligations of the Party with respect to such future performance and shall continue in full force and effect.
13.5. Assignment. Neither party may assign its rights or delegate its duties or obligations under this Agreement without the other party’s prior written consent, such consent which shall not unreasonably be withheld. Notwithstanding the forgoing, ITSourcePro may assign this Agreement without the prior written consent of Customer in connection with the acquisition of ITSourcePro or the sale of all or substantially all of its assets.
13.6. Agreement Binding On Successors. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assignees of the respective Parties.
13.7. Governing Law and Jurisdiction. The validity, construction and interpretation of this Agreement and the rights and duties of the Parties hereto, shall be governed by and construed in accordance with the laws of the State of Texas, excluding its conflict of laws principles. Any legal action or proceeding arising under this Agreement will be brought either in the federal court in the United States District and Bankruptcy Court Southern District of Texas, Houston Division; or state courts located in Harris County, Texas, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
13.8. Relationship of Parties. The Parties hereto are independent contractors and this Agreement shall not create or imply an agency relationship between the Parties. Pursuant to and during the term of this Agreement, ITSourcePro may, from time to time, request that the Customer execute such instruments and documents appointing ITSourcePro an agent of the Customer for a specific limited purpose. An officer of Customer shall, in a timely manner, execute and deliver to ITSourcePro or the third party requiring the same, such instruments designating ITSourcePro as Customer’s agent to the extent required by ITSourcePro to manage and perform the Services provided by it under this Agreement.
13.9. Subcontractors. ITSourcePro may engage subcontractors to perform services under any SOW. Except as provided herein, ITSourcePro shall be fully responsible for the acts of all subcontractors to the same extent it is responsible for the acts of its own employees.
13.10. Severability. In the event that any of the provisions of this Agreement are declared or held by a court of competent jurisdiction invalid, illegal or unenforceable, the unaffected portions of this Agreement shall be unimpaired and remain in full force and effect. In the event of such a ruling, the Parties shall negotiate in good faith a substitute for the provision declared invalid, illegal or unenforceable.
13.11. Notices. Any notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing and shall be sufficiently given if hand delivered or sent by first‑class certified or overnight delivery mail, postage prepaid:
If to ITSourcePro:
ITSourcePro LLC
Attn: General Counsel
5307 Creekbend Drive
Houston, TX 77096.
If to Customer, then to last known address of the Customer.
A Party may change its address for notices by sending a change of address notice using this notice procedure.
13.12. Captions. The descriptive headings of the Sections and subsections of this Agreement are for convenience only, do not constitute a part of this Agreement, and do not affect this Agreement’s construction or interpretation.
13.13. Amendments. No waiver of any right or remedy and no amendment, change or modification of the terms of this Agreement shall be binding on a Party unless it is in writing and is signed by the Party to be charged.
13.14. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be considered an original but all of which together will constitute one agreement.
13.15. Publicity. Nothing contained in this Agreement shall be interpreted so as to prohibit ITSourcePro or Customer to publicize its business relationship with the other Party or the nature of the Services performed for Customer, without the other Party’s prior written consent.
13.16. No Solicitation of Employees. Each Party agrees that during the term of this Agreement, and for a period of one year after the termination or expiration of this Agreement, that they will not hire or solicit for employment, without the other Party’s prior written consent, any person employed then by the other Party if such person became known to the soliciting Party through the relationship established pursuant to this Agreement. This prohibition will not apply to job opportunities posted on recruiting websites or in other publications in which one Party seeks to find candidates for open positions (absent direct solicitation and/or recruitment).
13.17. No Third Party Beneficiaries. Except as provided in Section 10 (Indemnification), this Agreement does not and is not intended to confer any enforceable rights or remedies upon any person or party other than the Parties.
13.18. Entire Agreement. This Agreement, including all Addenda, SOWs, and all schedules, attachments, and/or other documents attached hereto or incorporated by reference, constitutes the final agreement between the Parties. It is the complete and exclusive expression of the Parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the Parties on the matters contained in this Agreement are expressly superseded by this Agreement. The provisions of this Agreement may not be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither Party has relied upon any statement, representation, warranty or agreement of the other Party except for those expressly contained in this Agreement. There are no conditions precedent to the effectiveness of this Agreement, other than those expressly stated in this Agreement.
ADDENDUM A:
TERMS SPECIFIC TO PRODUCT SALES ONLY
This Addendum A: Terms Specific to Product Sales Only (“Addendum A”) applies to any order for software, hardware, or Resold Services (“Products”) made by Customer, for its own internal use and not for resale, pursuant to a quotation issued by ITSourcePro (“Quote”). As used in this Addendum A, the term “Resold Services” refers to services (e.g. Software as a Service), which although ordered from ITSourcePro, are procured from and supplied by a third party (i.e., ITSourcePro does not directly perform or control the work) and are therefore considered Product. Any such orders shall be subject to the terms and conditions of this Addendum A.
1. Product Returns and Warranty Assistance.
(a) Customer acknowledges that ITSourcePro is reselling all Products purchased by Customer and that Products are manufactured and/or delivered by a third party.
(b) To the extent available, ITSourcePro shall pass through to Customer the manufacturer’s warranties for each Product and agrees to facilitate the manufacturer’s return policies. Products shall not be accepted for return to ITSourcePro without ITSourcePro’s written approval. In no event will ITSourcePro provide return or warranty coverage beyond that provided by the manufacturer. Products that are accepted for return may be subject to restocking fees.
(c) Customer acknowledges that the terms and conditions governing the use of Products (e.g., EULAs) shall be solely between Customer and the manufacturer of such Products.
2. Product Use and Product Warranty Disclaimer. Customer will not use the Products for use in life support, life sustaining, nuclear or other applications in which failure of such Products could reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. Customer agrees that ITSourcePro is not liable for any claim or damage arising from such use.
ITSourcePro makes no warranties of any kind with regard to the Products. ITSourcePro disclaims all representations and warranties, express or implied, as to the Products, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, or non‑infringement. Any manufacturer warranties, if any, are provided solely by the manufacturer, not ITSourcePro.
3. Shipment and Risk of Loss for Product Sales. All shipments of Products to Customer will be FOB point of shipment. Insurance coverage, freight charges, transportation costs, and all other expenses applicable to shipment to Customer’s identified point of delivery will be the responsibility of Customer. Risk of loss will pass to Customer upon delivery of the Products to the common carrier (regardless of who pays such common carrier) or Customer’s representative at the point of shipment.
4. Product Security Interest. Customer grants ITSourcePro a security interest in the Products detailed in each Quote, as security for payment in full. Customer authorizes ITSourcePro to file and/or record any documents it deems necessary to perfect this security interest.
5. Permitting Compliance for Product Sales. Customer will obtain all licenses, permits, and approvals required by any governmental agency, foreign or domestic, having jurisdiction over the transaction.
6. Price and Payment. The prices set forth in any Quote are exclusive of all taxes, duties, licenses, and tariffs, payment of which shall be Customer’s obligation. Prices quoted are firm for thirty (30) days unless otherwise specified in the Quote. Payment (100%) is due upon order. In the event Customer chooses to finance its purchase using a third party, Customer remains liable for payment to ITSourcePro until ITSourcePro receives complete payment from such third party. All payments will be made in US currency. Customer will pay interest in the amount of one and one-half percent (1.5%) per month, or the maximum allowed by law whichever is lower, on any outstanding balance owed. Without limiting the foregoing, if Customer’s account remains unpaid for thirty (30) days or more past the due date, ITSourcePro reserves the right to suspend all Products until all such overdue amounts (and any applicable interest charges, as specified above) are paid. In addition, Customer agrees to reimburse ITSourcePro for all expenses incurred in connection with the collection of amounts payable hereunder, including contingent fees, court costs, and reasonable attorneys' fees. The prices set forth in any Quote or SOW are exclusive of all taxes, duties, licenses, and tariffs, payment of which shall be Customer’s obligation. Customer agrees to indemnify ITSourcePro for any tax liability, including interest and penalties, resulting from Customer's failure to pay applicable taxes.
7. Export. Customer agrees to comply with all export and re-export control laws and regulations as may be applicable to any transaction hereunder, including, without limitation, the Export Administration Regulations promulgated by the United States Department of Commerce, the International Traffic in Arms Regulations promulgated by the United States Department of State, and any of the regulations promulgated by the Office of Foreign Assets Control of the United States Department of the Treasury. Notwithstanding any sale of Products by ITSourcePro, Customer acknowledges that it is not relying on ITSourcePro for any advice or counseling on export control requirements. Customer agrees to indemnify, to the fullest extent permitted by law, ITSourcePro from and against any fines, penalties and reasonable attorney fees that may arise as a result of Customer’s breach of this Section 7 (Export).
8. Cancellation. The purchase of Products may be canceled by Customer only upon written approval of ITSourcePro and upon terms that indemnify ITSourcePro against all losses related to such cancelation.
9. Limitation of Liability. Except for liability arising from (a) gross negligence or willful misconduct, or (b) a Party’s breach of its confidentiality or data security obligations, neither Party shall be liable for incidental, consequential, special, or punitive damages, including lost profits or loss of data, arising out of or related to any Product or this Addendum A. Customer’s remedies for Product defects, nonconformance, or warranty-related issues (if any) are limited to the manufacturer warranties and return rights, if available, as described in Section 1 (Product Returns and Warranty Assistance), and nothing in this Section 9 expands any such warranties or return rights. Except for the carve‑outs identified above, ITSourcePro’s total aggregate liability arising from or related to any Product or this Addendum A shall not exceed the amounts paid by Customer to ITSourcePro for the applicable Product giving rise to the claim during the twelve (12) months preceding the event giving rise to the claim. The limitations in this Section 9 apply to the maximum extent permitted by applicable law and regardless of the theory of liability.
10. Survival. Those provisions that by their nature should survive termination of this Addendum A, will survive termination. Without limiting the generality of the foregoing statement, Sections 1 (Product Returns and Warranty Assistance), 2 (Product Use and Product Warranty Disclaimer), 6 (Price and Payment), 7 (Export), and 9 (Limitation of Liability) in this Addendum A shall survive any termination of this Agreement.