This Master Services Agreement (“Agreement”) is entered into as of (the “Effective Date”), by and between: Capital Data, Inc., a Wisconsin corporation (“Capital Data”); and (“Customer”).
SCOPE OF THIS AGREEMENT
This Agreement governs the provision of information technology services by Capital Data to Customer, including both Professional Services (project-based engagements such as implementation, configuration, and consulting) and Managed Services (ongoing, recurring support and management of Customer’s IT environment), as further described in one or more Statements of Work (“SOW”) executed by the parties (collectively, “Services”).
IMPORTANT: This Agreement applies exclusively to Services. The terms and conditions governing the purchase of hardware and software products are set forth solely in the applicable Sales Order and are not modified or superseded by this Agreement.
Table of Contents
1. Services
2. Fees; Taxes
3. Customer Responsibilities
4. Intellectual Property
5. Warranties
6. Liability; Indemnity
7. Confidential Information
8. Term and Termination
9. General Provisions
1. SERVICES
1.1 Scope of Services. Capital Data will provide Services as described in the applicable SOW. “Services” includes two categories: (a) “Professional Services,” meaning discrete, project-based engagements such as IT consulting, system implementation, configuration, installation, and project management; and (b) “Managed Services,” meaning ongoing, recurring services such as network monitoring, help desk support, system administration, cybersecurity management, and other IT infrastructure management. Each SOW will identify whether it covers Professional Services, Managed Services, or both. Each SOW is incorporated into and governed by this Agreement. In the event of a conflict between this Agreement and an SOW, the SOW controls with respect to that engagement.
1.2 Subcontractors. Capital Data will make reasonable efforts to ensure subcontractors perform in accordance with the applicable SOW and shall be responsible for subcontractor performance to the same extent Capital Data would be responsible for its own performance under this Agreement.
1.3 Change Orders. Either party may request changes to the scope of Services in a SOW. Changes become effective only upon a written Change Order signed by both parties, specifying the revised scope, fees, and timeline. Notwithstanding the foregoing, Capital Data may perform emergency Services requested by Customer on short notice; Capital Data will provide Customer a written estimate prior to performing such Services whenever practicable. Where advance notice is not possible, Capital Data will notify Customer within twenty-four (24) hours of commencing emergency Services and document the scope and applicable rates in a post-engagement Change Order. Customer will be invoiced for such Services at Capital Data’s then-current rates.
2. FEES AND PAYMENT
2.1 Fees. Customer shall pay the fees set forth in the applicable SOW. All invoices are due within thirty (30) days of the invoice date. Undisputed amounts not paid when due accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law.
2.2 Disputed Invoices. Customer must notify Capital Data in writing of any good-faith dispute within thirty (30) days of the invoice date, identifying the disputed amount and basis for the dispute. The parties will work in good faith to resolve disputes promptly. Undisputed portions of any invoice remain due by the original due date.
2.3 Taxes. Customer is responsible for all applicable sales, use, excise, and similar taxes arising from the Services, excluding taxes levied against Capital Data
3. CUSTOMER RESPONSIBILITIES
3.1 Authorized Contacts. Customer will designate authorized contacts in each SOW. Capital Data may rely on instructions from designated contacts as binding on Customer.
3.2 Access and Resources. Customer will provide Capital Data, at no cost, with timely access to personnel, systems, facilities, data, and other resources reasonably necessary for Capital Data to perform the Services. If Customer restricts or delays access, any related delays in Service delivery are not the responsibility of Capital Data, and project timelines will be adjusted accordingly.
3.3 Customer Equipment and Facilities. Unless otherwise stated in an SOW, Customer is responsible for maintaining its equipment and facilities in conditions suitable for Capital Data to perform Services, including appropriate power, temperature, and environmental controls. This section does not apply to equipment purchased from Capital Data.
3.4 Customer Software Licensing. If Capital Data installs, accesses, or modifies Customer software as part of the Services, Customer represents that all such software is properly licensed. Customer remains responsible for monitoring its environment for unlicensed software. This section does not apply to software purchased from Capital Data.
3.5 Data Backup. Unless otherwise specified in an SOW, Customer is responsible for maintaining current backups of all Customer data, systems, and configurations prior to and during Service delivery. Capital Data will not be liable for data loss resulting from Customer’s failure to maintain adequate backups, except where loss is directly caused by Capital Data’s negligence or willful misconduct.
3.6 Cooperation. Timely performance of Services is dependent on Customer’s cooperation. If Customer fails to provide necessary cooperation, information, or approvals in a timely manner, Capital Data’s performance obligations will be excused for the duration of the delay, and applicable deadlines will be extended accordingly. If a Customer-caused delay exceeds thirty (30) consecutive days, either party may, upon ten (10) days’ written notice, re-scope or terminate the affected SOW without further liability, subject to Customer’s obligation to pay for Services rendered and non-cancellable commitments already incurred by Capital Data.
3.7 Third-Party Warranties. Where Services involve third-party hardware or software not purchased from Capital Data, Capital Data does not assume responsibility for those products’ warranties. Capital Data will use reasonable efforts to assist Customer in asserting any applicable third-party warranty claims.
4. INTELLECTUAL PROPERTY
4.1 Capital Data IP. Capital Data retains all right, title, and interest in its pre-existing intellectual property, tools, methodologies, software, and know-how used in performing the Services (“Capital Data IP”), including any enhancements or derivatives thereof. Capital Data IP does not include Customer Confidential Information or third-party products purchased by Customer through Capital Data.
4.2 Work Product. Except as otherwise specified in an SOW, work product created exclusively for Customer under this Agreement is intended to be owned by Customer as “work made for hire.” To the extent any work product does not qualify as work made for hire, Capital Data hereby assigns all rights thereto to Customer. Capital Data retains a non-exclusive, perpetual, royalty-free license to use the underlying Capital Data IP incorporated in such work product for its own internal business purposes. Capital Data will not incorporate third-party materials into work product without Customer’s prior written consent. If Customer does not respond to a consent request within five (5) business days, Capital Data may proceed with commercially available open-source materials under permissive licenses (MIT, Apache 2.0, or BSD) subject to prompt written notice to Customer identifying the specific materials used.
4.3 License to Customer. To the extent Capital Data IP is embedded in delivered work product, Capital Data grants Customer a non-exclusive, non-transferable, perpetual, royalty-free license to use Capital Data IP solely as incorporated in the work product and for Customer’s own internal business purposes.
4.4 IP Indemnification. Each party will defend, indemnify, and hold harmless the other from third-party claims alleging that the indemnifying party’s materials (Capital Data IP / work product in the case of Capital Data; Customer Data in the case of Customer) infringe a third party’s intellectual property rights, provided the indemnified party: (a) gives prompt written notice of the claim; (b) grants sole control of the defense and settlement to the indemnifying party; and (c) provides reasonable cooperation. If Capital Data’s materials are found to infringe, Capital Data will, at its election: (i) modify the materials to be non-infringing; (ii) obtain a license to continue use; or (iii) refund prepaid fees for the non-conforming Services.
5. WARRANTIES
5.1 Mutual Warranties. Each party represents and warrants that: (a) it has full authority to enter into and perform this Agreement; and (b) its performance will comply with all applicable laws and regulations.
5.2 Capital Data Service Warranty. Capital Data warrants that: (a) Services will be performed in a professional and workmanlike manner by qualified personnel; (b) Services will conform in all material respects to the specifications in the applicable SOW; and (c) Capital Data-developed work product will, at delivery, be free of known viruses, malware, or disabling mechanisms. In the event of a warranty breach, Capital Data will re-perform the non-conforming Services at no additional charge within thirty (30) days of written notice of the breach, or such other period as mutually agreed in writing. If Capital Data fails to remedy the breach within such period, Customer may, at its election, engage a qualified third party to cure the breach at Capital Data’s reasonable expense, or receive a refund of fees prepaid for the non-conforming Services. This exclusive warranty remedy does not limit Customer’s rights under Section 6.1 (Limitation of Liability) for losses caused by Capital Data’s failure to perform, including where carve-outs under Section 6.1 Exceptions apply.
5.3 Customer Warranty. Customer represents and warrants that it has obtained all necessary rights and permissions for Capital Data to access and use Customer’s systems, software, and data as required to perform the Services.
5.4 Third-Party Products. Warranties for third-party hardware and software are provided solely by the respective manufacturers or vendors. Capital Data makes no warranty with respect to third-party products and will use reasonable efforts to facilitate Customer’s enforcement of applicable third-party warranties.
5.5 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 5, ALL SERVICES, DELIVERABLES, AND WORK PRODUCT ARE PROVIDED “AS IS.” EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CAPITAL DATA DOES NOT WARRANT THAT SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THEY WILL OPERATE IN COMBINATION WITH CUSTOMER’S EXISTING SYSTEMS WITHOUT ISSUE.
6. LIMITATION OF LIABILITY AND INDEMNIFICATION
6.1 LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR LOSS OF PROFITS OR REVENUE, REGARDLESS OF THE FORM OF ACTION. EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE SOW DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
Exceptions. The liability cap in Section 6.1 does not apply to (a) breach of confidentiality obligations resulting in unauthorized disclosure of the other party’s Confidential Information to a third party (internal misuse of Confidential Information remains subject to the cap); (b) indemnification obligations under Section 4.4 (IP Indemnification) solely with respect to third-party intellectual property infringement claims; (c) amounts covered by a party’s insurance; or (d) liability arising from gross negligence, willful misconduct, fraud, or violation of law.
6.2 Capital Data Indemnification. Capital Data will defend, indemnify, and hold harmless Customer and its officers, directors, and employees from third-party claims arising from: (a) personal injury, death, or tangible property damage caused by Capital Data’s gross negligence or willful misconduct; (b) Capital Data’s violation of applicable law; or (c) Capital Data’s material breach of its representations and warranties in Section 5.1.
6.3 Customer Indemnification. Customer will defend, indemnify, and hold harmless Capital Data and its officers, directors, and employees from third-party claims arising from: (a) personal injury, death, or tangible property damage caused by Customer’s gross negligence or willful misconduct; (b) Customer’s violation of applicable law; or (c) Customer’s material breach of its representations and warranties in Section 5.1.
7. CONFIDENTIALITY AND DATA SECURITY
7.1 Definition. “Confidential Information” means any non-public information disclosed by one party to the other in connection with this Agreement that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure, including pricing, technical data, business plans, and Customer Data. Confidential Information does not include information that: (a) is or becomes publicly known through no breach of this Agreement; (b) was rightfully known to the receiving party without restriction before disclosure; (c) is received from a third party without restriction; (d) is independently developed without reference to the disclosing party’s Confidential Information; or (e) is required to be disclosed by law or court order, provided the receiving party gives the disclosing party at least ten (10) business days’ prior written notice to seek a protective order.
7.2 Obligations. Each party will: (a) hold the other’s Confidential Information in strict confidence using at least the same degree of care it uses to protect its own confidential information (but no less than reasonable care); (b) use Confidential Information solely to perform or receive Services under this Agreement; and (c) disclose Confidential Information only to employees, contractors, or agents with a need to know and who are bound by confidentiality obligations no less protective than those in this Agreement.
7.3 Security Incident Notification. Capital Data will provide Customer with written notice within twenty-four (24) hours of discovering any unauthorized access to, disclosure of, or acquisition of Customer’s Confidential Information (“Security Incident”). A more detailed written report, including full details of the incident, affected data, and remediation steps taken or planned, will be provided within seventy-two (72) hours of discovery. Capital Data will cooperate in any investigation and use commercially reasonable efforts to contain and remediate the incident at Capital Data’s expense.
7.4 Data Security Practices. Capital Data will maintain commercially reasonable administrative, technical, and physical safeguards designed to protect Customer’s Confidential Information and data. Capital Data will comply with applicable data privacy and security laws and will restrict access to Customer systems to the minimum necessary to perform Services. Capital Data will promptly notify Customer upon termination of any employee with access to Customer’s systems.
7.5 Audit Rights. Upon reasonable advance written notice (no more than once per calendar year, unless a Security Incident under Section 7.3 has occurred in the prior twelve (12) months, in which case Customer may conduct one additional audit related to the incident), Customer may audit Capital Data’s compliance with this Section 7, subject to reasonable confidentiality and security controls. Customer may conduct such audits using its own personnel or a qualified third-party auditor, provided such third party is subject to reasonable confidentiality obligations no less protective than those in this Agreement.
7.6 Data Return and Destruction. Upon expiration or termination of this Agreement or any SOW, Capital Data will, at Customer’s election and within thirty (30) days of written request: (a) return all Customer Confidential Information and Customer Data in a commercially standard, machine-readable format; or (b) certify in writing the secure deletion or destruction of all Customer Confidential Information and Customer Data from Capital Data’s systems, including any backups. Notwithstanding the foregoing, Capital Data may retain Customer data to the extent required by applicable law or regulation, provided such retained data remains subject to the confidentiality obligations of this Agreement.
8. TERM AND TERMINATION
8.1 Term. This Agreement commences on the Effective Date and continues until terminated. Each SOW will specify its own term. Upon expiration of a SOW’s initial term, Services will automatically renew for successive equal periods unless either party provides written notice of non-renewal at least sixty (60) days before the renewal date; provided that for Managed Services SOWs, the non-renewal notice period is ninety (90) days. Renewal pricing increases will not exceed the greater of (a) the prior year’s pricing plus five percent (5%) or (b) the percentage change in the U.S. Consumer Price Index for All Urban Consumers (CPI-U) for the prior twelve (12) months, unless otherwise agreed in writing by both parties.
8.2 Termination for Cause. Either party may terminate this Agreement or any SOW upon written notice if the other party materially breaches this Agreement and fails to cure the breach within: (a) thirty (30) days for non-payment; or (b) thirty (30) days for all other material breaches. Capital Data may immediately suspend Services if Customer’s breach poses imminent harm to Capital Data’s systems or other customers. Customer will receive a refund of prepaid fees for Services not yet rendered if Customer terminates for cause.
Automatic Termination Events. Capital Data may immediately terminate upon written notice if Customer: (a) ceases business operations; (b) makes an assignment for the benefit of creditors; or (c) becomes subject to bankruptcy or insolvency proceedings not dismissed within thirty (30) days.
8.3 Termination for Convenience. Either party may terminate any SOW for convenience upon thirty (30) days’ prior written notice. Upon such termination, Customer will pay Capital Data for all Services rendered and pre-approved expenses incurred through the termination date. If Capital Data terminates for convenience, Customer will receive a refund of any prepaid fees for Services not yet rendered.
8.4 Transition Assistance. Upon any expiration or termination, Capital Data will provide reasonable transition assistance for up to sixty (60) days to help Customer transition to an alternative provider, at Capital Data’s then-current rates. If termination results from Capital Data’s breach, transition assistance will be provided at no additional charge.
8.5 Survival. Sections 2 (Fees), 4 (Intellectual Property), 5.4–5.5 (Warranty Disclaimer), 6 (Limitation of Liability and Indemnification), 7 (Confidentiality), and 9 (General Provisions) survive expiration or termination of this Agreement.
9. GENERAL PROVISIONS
9.1 Independent Contractors. The parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, employment, or agency relationship.
9.2 Notices. Notices must be in writing and delivered by: (a) hand delivery; (b) nationally recognized overnight courier; (c) certified mail, return receipt requested; or (d) email with confirmation of receipt, to the addresses in the applicable SOW or as updated in writing. Notice is effective upon confirmed receipt.
9.3 Assignment. Neither party may assign this Agreement without the other party’s prior written consent, except that either party may assign this Agreement in connection with a merger, acquisition, or sale of all or substantially all its assets, provided the assignee assumes all obligations hereunder.
9.4 Force Majeure. Neither party is liable for delays or failures in performance caused by events beyond its reasonable control (e.g., natural disasters, acts of government, terrorism, or widespread infrastructure failures). The affected party will notify the other promptly and use commercially reasonable efforts to resume performance. If a force majeure event prevents Capital Data from performing for more than thirty (30) consecutive days, Customer may terminate the affected SOW without further liability and receive a refund of prepaid fees for Services not rendered.
9.5 Non-Solicitation. During the term of any SOW and for one (1) year after its expiration or termination, neither party will directly solicit for employment any employee of the other party who was involved in performing or receiving the Services. This restriction does not apply to general advertising or to individuals who have left the other party’s employment prior to solicitation.
9.6 Insurance. Each party will maintain at its own expense the following minimum insurance coverage: (a) Commercial General Liability: $2,000,000 per occurrence and in aggregate; (b) Automobile Liability: $1,000,000; (c) Workers’ Compensation as required by law and Employer’s Liability: $100,000; and (d) Professional Liability / Errors & Omissions: $2,000,000 per occurrence and in aggregate. Upon request, each party will provide the other with certificates of insurance evidencing the foregoing coverage.
9.7 Governing Law; Venue. This Agreement is governed by the laws of the State of Wisconsin, without regard to conflict of law rules. The exclusive venue for any dispute is the state or federal courts located in Milwaukee County, Wisconsin, and the parties irrevocably consent to personal jurisdiction therein; provided, however, that if the parties mutually agree in writing that a different venue is more appropriate given the circumstances of a particular dispute, either party may seek resolution in the state or federal courts of the defendant’s principal place of business. The prevailing party in any dispute is entitled to recover reasonable attorneys’ fees and costs.
9.8 Waiver and Severability. Failure by either party to enforce any provision of this Agreement does not constitute a waiver. If any provision is held unenforceable, it will be modified to the minimum extent necessary to make it enforceable, and the remaining provisions will continue in full force.
9.9 Entire Agreement; Amendments. This Agreement, together with all SOWs and Change Orders, constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous oral or written understandings. Purchase orders or other Customer ordering documents are for administrative purposes only and do not modify this Agreement. Amendments must be in writing and signed by authorized representatives of both parties.
9.10 Sales Orders for Products. For avoidance of doubt, the terms and conditions applicable to purchases of hardware and software products are set forth exclusively in the applicable Sales Order. This Agreement does not govern, modify, or supersede the terms of any Sales Order for products.
9.11 Counterparts. This Agreement may be executed in counterparts, including by electronic signature, each of which constitutes an original and all of which together constitute one agreement.
9.12 Dispute Escalation and Mediation. Prior to initiating litigation, the parties will attempt to resolve any dispute through good-faith escalation to senior management (Vice President level or above) within thirty (30) days of written notice of the dispute from either party. If the dispute remains unresolved following such escalation, the parties may elect non-binding mediation with a mutually agreed mediator before filing suit. This section does not prevent either party from seeking emergency injunctive or other equitable relief in any court of competent jurisdiction to protect its intellectual property or Confidential Information pending resolution of the dispute.
IN WITNESS WHEREOF, the parties have executed this Master Services Agreement as of the Effective Date.