This MSA shall apply each time Client engages Nexigen to provide services or products. All services or products provided by Nexigen under this MSA will be described in one or more Service Agreements (“Services”). “Service Agreements” are order forms or service contracts that incorporate the terms of this MSA, including:
1. Service Descriptions;
2. Technical Specification Form(s);
3. Any Statement(s) of Work (“SOW”)
4. Any Nexigen Quote accepted by Client; and
5. Other mutually agreed upon documents.
The MSA and each Service Agreement will be interpreted as a single agreement, independent of any other Service Agreement. In no event will the description of Services under any Service Agreement be deemed by implication or otherwise to exclude any Services described in this MSA or another Service Agreement.
“Services” do not include third party products or third party branded services (“Third Party Services”) that may be or have been purchased by Client from a third party or procured by Nexigen for Client.
In the event of a conflict between the terms of this MSA and a Service Agreement, the terms of these documents will be interpreted according to the following order of precedence: (1) Service Agreements and (2) the MSA.
The prices charged for Services purchased under this MSA will be Nexigen’s “then-current” charges for such Services as quoted by Nexigen. Nexigen reserves the right to revise pricing if prices for Services are based upon written assumptions and those assumptions are determined inaccurate. If Client and Nexigen are not able to reach agreement on the revised pricing, Client or Nexigen may terminate the applicable Service Agreement, but the MSA remains in effect. If the Services are being performed on a time and materials basis, any estimates provided by Nexigen are for planning purposes only. Any required deposits are non-refundable.
Client shall be responsible for all applicable taxes and fees assessed or imposed upon the Services provided or the amounts charged under this MSA, including any sales, use, excise, value-added, or comparable taxes, but excluding taxes for which Client has provided a valid resale or exemption certificate. Taxes imposed on Nexigen in connection with the Services purchased under this will appear as separate items on Nexigen’s invoices.
Client’s payment terms will be in U.S. Dollars and paid within thirty (30) days from the date of invoice, subject to continuing credit approval by Nexigen. Each Service Agreement will specify all charges that Client will pay to Nexigen for the Services to be rendered pursuant to that Service Agreement. Additional charges may apply if Client requests Services that are performed outside contracted hours or are beyond the normal coverage for the particular Service.
For invoices not paid within thirty (30) days of the invoice date, interest shall accrue at a rate of 1.5% per month. Payment by Client shall not preclude Client from questioning any charges that Client believes to be improper or incorrect within thirty (30) days of the date of the invoice. For undisputed invoices not paid within sixty (60) days of the invoice date, Nexigen may stop all work under this MSA and Service Agreements without notice and/or cancel this MSA. Upon cancellation, any outstanding balance plus interest shall become immediately due and payable. In addition, Nexigen may seek collection of all amounts due, and Client agrees to pay any legal fees and costs of collection incurred by Nexigen.
The initial term of this MSA shall begin on the earlier of the date on Client’s invoice with Nexigen, the date on which Service delivery begins, or the date on which your use of the Service begins (“Effective Date”) and continue for a period of twelve (12) months. The MSA will automatically renew on the anniversary of the Effective Date for subsequent one year terms (“Term”) unless terminated in accordance with the provisions herein.
Each Service Agreement will continue for the term stated therein, unless otherwise terminated pursuant to this MSA. In addition, Nexigen may propose to renew the Service by sending Customer an invoice or continuing to make the Service available to Client. Client may (where permitted by law) agree to such renewal of the Service by paying such invoice by its due date or by continuing to use the Service. If Client renews a Service Agreement by continued use of the Service, Customer will be invoiced in a manner substantially similar to the initial term of Service.
Either party may terminate this MSA for convenience by providing at least thirty (30) days prior written notice to the other. Termination of this MSA for convenience will not terminate any outstanding Service Agreement that provides for a specific term over which the Services are to be provided. In such case, this MSA, as incorporated into the Service Agreement, and the Service Agreement that provides for a specific term will remain in effect for the remainder of such term. Upon termination of this MSA, all rights and obligations of the parties under this MSA will automatically terminate except for rights of action accruing prior to termination, payment obligations, any obligations that expressly or by implication are intended to survive termination and any obligations as they relate to an existing Service Agreement.
Either party may terminate an individual Service Agreement if the other party commits a material breach of such agreement and the breach is not cured within thirty (30) days of receipt of written notice from the injured party. Termination of one or more Service Agreements will not terminate this MSA.
“Third Party Products” means any third-party hardware, services or software licensed, purchased and/or used by Client including, but not limited to, hosted or online services. Some manufacturers’ warranties or service contract terms and conditions for Third Party Products may become void if Nexigen or anyone else, other than the manufacturer or its authorized representative, provides services for or works on the hardware or software (such as providing maintenance and repair services). NEXIGEN DOES NOT TAKE RESPONSIBILITY FOR THIRD PARTY WARRANTIES OR FOR ANY EFFECT THAT NEXIGEN’S SERVICES MAY HAVE ON THOSE WARRANTIES. Except as agreed to in writing between Client and Nexigen, Third Party Products shall be exclusively subject to terms and conditions between the third party and Client. Nexigen shall have no liability for Third Party Products and Client shall look exclusively to the third party provider for any damages or liability with respect to the provision of such Third Party Products.
Client agrees to purchase, or provide documented original copies of all software in accordance with the manufacturer’s software licensing agreements. NEXIGEN IS NOT LIABLE FOR, NOR WILL SUPPORT NON-LICENSED COPIES OF ANY COMMERCIAL OR PROPRIETARY SOFTWARE. This section shall survive the expiration or termination of this MSA regardless of the reason for its expiration or termination.
From time to time Nexigen may be required to use Third Party Products in the course of providing Services. Except as otherwise specifically agreed to in a Service Agreement, Client authorizes Nexigen (or otherwise obtains the rights for Nexigen) to copy, install and modify, when necessary and as required by the Service Agreement, all Third Party Products, including software, to be used in the Services or to be copied or stored for subsequent re-installation of a backup system or data. Client warrants and covenants to Nexigen that it has obtained or will obtain any licenses, consents, regulatory certifications or approvals required to give Nexigen and its subcontractors or employees such rights or licenses to access, copy, distribute, use and/or modify (including creating derivative works) or install any Third Party Products to be used in the Services, without infringing the ownership or license rights (including patent and copyright) of the providers or owners of such products.
Nexigen is not responsible for determining if Third Party Products to be used in performance of the Services satisfy any federal, state, local, or industry requirements, nor shall Nexigen be obligated to perform any Services where the resulting products or software do not satisfy such regulatory requirements unless specifically stated in a Service Agreement.
Except as otherwise specifically agreed to in a Service Agreement, Nexigen will retain exclusive ownership in all Deliverables created by Nexigen hereunder and will own all intellectual property rights, title and interest in any ideas, concepts, know how, documentation or techniques developed by Nexigen under this MSA. Subject to payment in full for the applicable Services, Nexigen grants Client a non-exclusive, non-transferable, royalty-free right to use the Deliverables solely for Client’s internal use. “Deliverables” means the items to be created and delivered to Client by Nexigen as set out in the Service Agreement and the tangible and intangible materials, including reports, studies, base cases, drawings, findings, manuals, procedures and recommendations that are prepared by Nexigen or its subcontractors in the course of performing the Services.
Client agrees that any equipment or Third Party Products used by Nexigen in the performance of the Services that is not explicitly purchased by Client shall remain the property of Nexigen. Upon termination of the MSA or applicable Service Agreement, Client shall, within ten (10) days, return the equipment or Third Party Products to Nexigen. In the event the equipment or Third Party Products are not timely returned to Nexigen, then Nexigen is granted access to the Premises to remove the equipment or Third Party Products at the cost and expense of the Client. Client further agrees to cease the use of any technology that remains the property of Nexigen upon termination of this MSA or applicable Service Agreement.
In the performance of the Services, Client and Nexigen may have access to or be exposed to information of the other party not generally known to the public, including, but not limited to, software, product plans, marketing and sales information, client lists, “know-how,” or trade secrets which may be designated as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential (“Confidential Information”). Confidential Information may not be shared with third parties unless such disclosure is to personnel of Nexigen or Client, including employees, agents and subcontractors, on a “need-to-know” basis in connection with its performance of this MSA, so long as such personnel have agreed to treat such Confidential Information under terms at least as restrictive as those herein. The foregoing shall not include information which was known by one party prior to its receipt from the other or is or becomes public knowledge without the fault of the recipient; is received by the recipient from a source other than a party to this MSA; or a party is required to disclose in response to an order by a court of competent jurisdiction provided that advance notice of the disclosure in response to the order is provided to other party. Client agrees not to disclose rate(s) or term(s) regarding this MSA without the prior written consent of Nexigen. This section shall survive the expiration or termination of this MSA regardless of the reason for its expiration or termination.
Client agrees not to hire or attempt to hire any Nexigen employee, contractor, or former employee within two years of termination of employment with Nexigen, as full-time or part-time employee, contractor, or any other such position without the written consent of Nexigen. Client understands and agrees that Nexigen shall suffer such irreparable harm and in such event that Client shall, if such breach should occur, immediately pay to Nexigen an amount equal to twice the employee’s annual compensation (including salary and expected bonuses) at the time of breach. This section shall survive the expiration or termination of this MSA regardless of the reason for its expiration or termination.
Client acknowledges that Nexigen’s performance and delivery of Services is contingent upon Client’s timely decision-making, notification of relevant issues or information, and granting of approvals or permissions and Client shall, in a timely manner, make decisions and notify Nexigen of the decisions, including without limitation, approvals and permissions and other relevant issues or information, all in a timely manner.
Client agrees that Nexigen may utilize certain items of Client’s equipment and may gain access to certain Client facilities in the performance of the Services. Client shall permit Nexigen free and timely access to areas and equipment, and allow Nexigen to start and stop the equipment as necessary to perform required Services. Client agrees to employ reasonable measures to assist Nexigen personnel in determining the Service required and shall allow Nexigen reasonable use of necessary data communications facilities for Nexigen to affect necessary Services. If access to facilities is denied, Client understands that Nexigen may be unable to perform their duties adequately and if such a situation should exist, Nexigen shall be held harmless by Client.
Client will be responsible for obtaining proper and adequate permission for Nexigen to enter upon and operate within the lands and properties designated as Client’s work area including, but without limitation, providing and furnishing to Nexigen all keys, passwords or other security devices to allow access to the Client’s facilities and work areas.
Nexigen agrees to comply with all applicable health and safety protocols. Client agrees to remedy any conditions which exist that have the potential to create or does create a hazard.
Client shall make available to Nexigen’s personnel all pertinent Material Safety Data Sheets (MSDS) pursuant to OSHA’s Hazard Communication Standard Regulations.
Client agrees to provide Nexigen a written list of the names of persons authorized to request Services from Nexigen. Client further agrees to provide, in writing, any changes to this list of authorized persons. If client elects not to provide said list, Nexigen will assume, and rely on, that all persons from Client are authorized to request Services of Nexigen on behalf of Client.
CLIENT UNDERSTANDS AND AGREES TO PERFORM BACKUP ON ALL PROGRAMS AND DATA FROM THE EQUIPMENT BEING SERVICED PRIOR TO THE PERFORMANCE OF SUCH SERVICE.
Certain Services consist of, make use of, or require the Client to use or access hosted or online services, platforms, tools, and applications (“Hosted Services”). All such use and access of Hosted Services by Client will be in conformance with any agreements or terms and conditions required to use the Hosted Services.
Nexigen warrants that Services will be performed to the best of its ability and in accordance with reasonable and customary practices prevailing at the time for its business. No other warranties exist, express or implied, including but not limited to any express or implied warranties of merchantability, fitness for a particular purpose, and non-infringement. In no event will Client, or any other person or entity to whom Client may be liable, be eligible for or entitled to any type of damages whatsoever arising out of or related to this MSA or any Services, including, but without limitation, lost profits, lost savings, or other actual, direct, or incidental, or consequential damages, injuries to persons or property, loss of use of property, loss or damage to data or records or damages arising from the use, loss of use, or performance of the Services, even if Nexigen has been advised of the possibility of such damages, or for any claim against the Client or Nexigen by any other party arising hereunder. Nexigen’s liability for damages from any cause whatsoever, and regardless of the form of action, including negligence, shall be limited to monies actually paid by Client to Nexigen the Services hereunder.
The Services are designed to cover the needs of Client during normal operating conditions. Nexigen shall not be liable for any delay, loss, damage or detention caused by unavailability of equipment, software or materials, delay of carriers, strikes, lockouts, civil or military authority, priority regulations, wars, insurrection or riot, action of the elements, forces of nature, or by any cause beyond its control.
Furthermore, damage and/or significant problems that result from anomalies and/or abnormal circumstances such as fire, flood, electrical surges, interruption in utilities, deliberate malicious acts, theft, acts of God, wars, insurrections, and/or any other cause beyond the reasonable control of either party fall outside the terms of this MSA.
Client shall at all times defend, indemnify and hold Nexigen harmless against and from all claims, losses, liability, expenses, lawsuits or damages that may arise against Nexigen in connection with Nexigen providing Services to Client. This includes, but is not limited to, all claims against Nexigen for personal injury (including death), damage to property of Client or others, or any other claim arising in tort, arising under contract, or arising under a violation of law. Client’s duty to defend, indemnify and hold Nexigen harmless shall include, but not be limited to, the payment of Nexigen’s attorney’s fees and expenses.
This section shall survive the expiration or termination of this MSA regardless of the reason for its expiration or termination.
The Services are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines, or any other application in which the failure of the Services could lead directly to death, personal injury, or severe physical or property damage (collectively, “High-Risk Activities”). Nexigen expressly disclaims any express or implied warranty of fitness for High-Risk Activities.
Client represents and warrants that it has full right, power and authority necessary to enter into this MSA and to grant the rights contained herein and that by entering into this MSA it will not breach or violate any provisions of any other agreement to which it is bound.
The relationship of Nexigen to Client is that of an independent contractor and not that of an agent or employee of the Client. It is expressly understood and agreed by the parties that Client shall not have, nor exercise, any control or direction over the manner or methods by which Nexigen provides the Services other than the right to require that the performance of such services be in accordance and consistent with the terms set forth in this MSA or Service Agreement.
This MSA and Service Agreements is the entire agreement between Nexigen and Client with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements. No amendment to or modification of this MSA, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this MSA is void or unenforceable, the remainder of this MSA will remain in full force and effect. Section headings are for reference only and shall not affect the meaning or interpretation of this MSA.
All of the provisions of this MSA are solely for the benefit of the parties hereto, and none of the other provisions of this MSA shall inure to the benefit of any person not a party to the MSA, and third parties shall have no rights hereunder.
Any claim or dispute arising from or relating to the MSA or Service Agreements will be governed by the laws of the State of Kentucky, without regard to its conflicts of law provisions. The parties agree that the state courts of Campbell County, Kentucky shall have exclusive venue and jurisdiction over the parties with respect to any claim or dispute arising from, or relating to, the MSA or Service Agreements. Client waives its right to a trial by jury as to any claims or disputes arising from, or relating to, this MSA or Service Agreements. Any legal action against Nexigen relating to this MSA, or the breach thereof, shall be commenced within one (1) year from the date of the Service Agreement pertaining to the alleged breach.
Neither this MSA nor any rights or benefits hereunder may be assigned, in whole or part, by Client without the prior written consent of Nexigen. This MSA shall inure to the benefit of and be binding upon the successors and assigns of Client. For the purpose of this MSA, the term “successor” shall mean any person, firm, corporation, or other business entity which at any time, whether by merger, purchase, liquidation or otherwise, shall acquire all or substantially all of the assets or business of Client.
Failure to enforce at any time any of the provisions of this Agreement or to require at any time performance by the other party of any of the provisions thereof shall in no way be construed to be a waiver of such provisions or to affect the validity of this Agreement or any part hereof, or the right of either party thereafter to enforce each and every provision in accordance with the terms of this Agreement.