This Master Services Agreement for Professional Technology Information Services (“Agreement”) is made on _[EFFECTIVE DATE]_, by and between Finchloom, with an office at 2815 Townsgate Road, Suite 140, Westlake Village, CA 91361 (“COMPANY”), and [CLIENTNAME] with an office at [CLIENT ADDRESS, ST, ZIP] (“CLIENT”). Hereinafter, “COMPANY” and “CLIENT” are together referred to as “Parties.”

The Parties agree as follows:

1. General Purpose. The general purpose of this Agreement is to engage the services of COMPANY to perform technology CONSULTING services at the default billable rate below or with optional services described in the attached agreement with a Statement of Work (SOW), single instance or multi-instance FLIGHT (FLIGHT), Open Services Agreement (OSA), or Managed Services Agreement (MA).

  1. “State Of Work” (SOW) is a project agreement to engage with the COMPANY, with a detailed scope of work.
  2. “FLIGHT” (FLIGHT) is a fixed budget monthly ongoing service for multiple projects to engage with the COMPANY, without initially defining the scope of work.
  3. “Open Services Agreement” (OSA) is a retainer to engage with the COMPANY, without a detailed scope of work.
  4. “Managed Services Agreement” (MA) is a fixed rate ongoing monthly services to engage with the COMPANY, with a detailed scope of work.

2. General Duties of COMPANY. COMPANY shall perform in conformance with attached SOW, FLIGHT, OSA, or MA as incorporated herein, and in conformance with professional standards for performing services of a similar kind.

3. Duties of the CLIENT. In addition to any obligations and responsibilities described in an executed SOW, FLIGHT, OSA, or MA, or elsewhere in this Agreement, including other Schedules incorporated herein, CLIENT shall have shared responsibility with COMPANY regarding the following:

  1. To ensure that the necessary business and application knowledge is available and timely conveyed from the CLIENT’s existing support team to COMPANY’s support team.
  2. To provide ready access to all appropriate computing platforms, documentation (e.g., program source, copybooks, tables, subroutines) and personnel (i.e., end users and technical representatives) necessary to fully understand the CLIENT’s current business systems and environments throughout the life of this Agreement.
  3. To provide at its facility, office space and equipment for COMPANY’s on-site employees. Access shall also be provided for the CLIENT’s source libraries, test systems, and test data.
  4. To provide remote access capability and/or access to its work facility to enable the COMPANY’s project team to access the CLIENT’s information technology system for after hours or weekend Services as required.
  5. CLIENT shall assign an employee or representative to be present at the work facility for any after-hours or weekend services provided by COMPANY. In the event the CLIENT declines or fails to assign an employee or representative to be present during such hours, CLIENT waives any and all claims for any property damage or loss that occurs during such time that COMPANY’s employee(s) is on the CLIENT’s work facility.
  6. To provide passwords and/or administrative access to the COMPANY’s employees as needed.
  7. To provide CLIENT’s employees, staff and agents with the appropriate training of the functions of COMPANY’s program(s) such that the programs(s) are used for their intended purposes and to achieve the best results.

4. Term of Agreement.

  1. The term of this Agreement will commence on the Effective Date set forth below and will continue until terminated by either Party as provided below. In the event that an executed SOW, FLIGHT, OSA, or MA provides for a different term, the SOW/FLIGHT/OSA/MA will control.
  2. Either Party shall have the option to terminate this Agreement, without cause, by providing ninety (90) days’ notice of its intent to terminate the Agreement without cause. In the event that an executed SOW, FLIGHT, OSA, or MA provides for a different termination notice period, SOW/FLIGHT/OSA/MA will control.
  3. In the event that there is a continuing need for any services identified in an executed SOW, OSA, MSA, after the expiration of this Agreement and CLIENT requests, in writing, to have COMPANY provide additional services, this Agreement will automatically renew for the period of time that it takes for the completion of such services.
  4. This Agreement may be terminated for cause, as defined in Paragraph 16(a) herein, at any time provided the alleged breaching Party is provided an opportunity to cure the alleged breach in the manner set forth in Paragraph 16(a) below or a Permitted Delay, as defined in Paragraph 16(d) herein, does not apply.

5. Compensation.

  1. In exchange for the services performed by the COMPANY as set forth in an executed SOW, FLIGHT, OSA, or MA, CLIENT agrees to compensate COMPANY at the rates identified in the fee schedule set forth in the SOW, FLIGHT, OSA, or MA. Such rates are exclusive of any federal, state, or local sales or use taxes, or any other taxes or fees assessed on, or in connection with any of the Services rendered herein. CLIENT agrees to pay all undisputed invoices within fifteen (15) days of receipt thereof. The rate for Time and Materials (T&M) NOT covered under an SOW, FLIGHT, OSA, or MA is the COMPANY stated List Rates as attached Exhibit A billed in 15-minute increments. COMPANY can publish revised LIST Rates at any time. In the event that an executed SOW, FLIGHT, OSA, or MA provides for a different rate, the SOW/FLIGHT/OSA/MA will control.
  2. Unless agreed otherwise, in a writing signed by both Parties, any services performed by the COMPANY outside of normal business hours (Monday-Friday 9am-5pm PST) will be subject to an “After Hours” service rate of 1.5x the agreed upon hourly rate or default hourly rate.
  3. CLIENT shall reimburse COMPANY for COMPANY’s actual out-of-pocket expenses as reasonably incurred by COMPANY in connection with performance of the services set forth in an executed SOW, FLIGHT, OSA, or MA. Furthermore, COMPANY agrees to incur additional costs for materials, services, training, and hardware that will be charged to the CLIENT only with CLIENT’s prior written Consent, which CLIENT agrees not to unreasonably withhold if such materials, services, training, and hardware are reasonably necessary for COMPANY to perform of the services set forth in an executed SOW, FLIGHT, OSA, or MA.
  4. A late charge of one and one-half percent (1½%) per month, or the legal maximum if less, shall accrue on past due billings unless CLIENT notifies COMPANY of a billing dispute in writing prior to the original payment due date. CLIENT shall be responsible for any costs incurred by COMPANY in the collection of unpaid invoices including, but not limited to, collection and filing costs and reasonable attorney’s fees of not less than fifteen percent (15%) of the outstanding balance due.

6. Change Orders or Out-of-Scope Services. To the extent that CLIENT requires or requests additional services or services that exceed the services set forth in an executed SOW, FLIGHT, OSA, or MA and incorporated herein, COMPANY will charge an additional fee for such additional services or out of scope work. Fees for such additional services or out of scope work will be set forth on a Change Authorization Order (“CAO”), which will also provide a description of the changed or additional service(s) being requested. Once a CAO is signed by both parties, it will be incorporated into the Agreement and have the same legal effect as an executed SOW, FLIGHT, OSA, or MA.

7. Retainer. COMPANY will make reasonable effort with executed SOW, FLIGHT, OSA, or MA to deliver services against a retainer deposit. All unused retainer deposits will expire upon twelve (12) months of the funds deposit.

8. Independent Contractor. The Parties enter into this Agreement as independent contractors and nothing within this Agreement shall be construed to create a joint venture, partnership, agency, or other employment relationship between the Parties. All COMPANY employees who are assigned to perform services at any CLIENT owned or leased facility shall be considered to be an employee of COMPANY only and will not be considered an agent or employee of CLIENT for any purpose. COMPANY will be solely responsible for payment of all compensation owed to its employees, including all applicable federal, state and local employment taxes and will make deductions for all taxes and withholdings required by law. In no event will any COMPANY employee be eligible for or entitled to any benefits of CLIENT.

9. Confidential information.

  1. CLIENT understands and acknowledges that COMPANY may, from time to time, disclose “Confidential information” to CLIENT. For purposes of this Agreement, the term “Confidential information” shall include but not be limited to any nonpublic and/or proprietary information or materials relating to COMPANY’s promotional and/or marketing strategy and activity, COMPANY’s pricing information (including but not limited to rates, margins, and budgets), COMPANY’s financial and budget information, COMPANY’s CLIENT lists, information about the education, background, experience, and/or skills possessed by COMPANY employees, COMPANY employee compensation information, COMPANY’s service and/or sales concepts, COMPANY’s service and/or sales methodology, COMPANY’s service and/or sales techniques, COMPANY’s CLIENT satisfaction data or sales information, or any information which COMPANY marks or identifies as “confidential” at the time of disclosure or confirms in writing as confidential within a reasonable time (not to exceed thirty (30) days) after disclosure. CLIENT will not disclose COMPANY’s Confidential information to any third Party at any time without the prior written consent of COMPANY and shall take reasonable measures to prevent any unauthorized disclosure by its employees, agents, contractors, or consultants. Further, COMPANY’s Confidential information shall include the terms set forth in this Agreement, all of which shall remain the property of COMPANY and shall in no event be transferred, conveyed, or assigned to CLIENT as a result of the services provided pursuant to this Agreement. The foregoing duty shall survive any termination or expiration of this Agreement.
  2. COMPANY also understands and acknowledges that CLIENT may, from time to time, disclose to COMPANY proprietary ideas, concepts, expertise, and technologies developed by CLIENT relating to computer application programming, installation, and operation (collectively “CLIENT’s Confidential information”). CLIENT may further provide to COMPANY documentation, reports, memoranda, notes, drawings, plans, papers, recordings, data, designs, materials, or other forms of records or information relating to CLIENT’s business operations (collectively “Confidential Trade information”). COMPANY agrees (i) not to use any CLIENT Confidential information or Confidential Trade information for its own use or for any purpose other than the specific purpose of completing the services set forth in an executed SOW, FLIGHT, OSA, or MA; (ii) not to voluntarily disclose any CLIENT Confidential information or Confidential Trade information to any other person or entity; and (iii) to take all reasonable measures to protect the secrecy of, and avoid disclosure or use of, CLIENT Confidential information and/or Confidential Trade information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have such CLIENT Confidential information and/or Confidential Trade information. The foregoing duty shall survive any termination or expiration of this Agreement.
  3. In no event shall CLIENT use COMPANY’s Confidential information to reverse engineer or otherwise develop products or services functionally equivalent to COMPANY’s products or services.
  4. The following shall not be considered Confidential information for purposes of this Agreement: (a) information which is or becomes in the public domain through no fault or act of the receiving Party; (b) information which was independently developed by the receiving Party without the use of or reliance on the disclosing Party’s Confidential information; (c) information which was provided to the receiving Party by a third Party under no duty of confidentiality to the disclosing Party; or (d) information which is required to be disclosed by law with no further obligation of confidentiality, provided, however, prompt prior notice thereof shall be given to the Party whose Confidential information is involved.
  5. The Parties agree that the disclosure of any of the foregoing Confidential information by either Party shall give rise to irreparable injury to the owner of the Confidential information, inadequately compensable in monetary damages. Accordingly, the non-disclosing Party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.

10. Ownership of materials Related to Services. The Parties agree that any materials prepared and delivered by COMPANY to CLIENT in the course of providing the Services set forth in an executed SOW, FLIGHT, OSA, or MA shall be considered works made for hire. All rights, title, and interests of such materials shall be and are assigned to CLIENT as its sole and exclusive property. Notwithstanding the foregoing, the Parties recognize that performance of COMPANY hereunder will require the skills of COMPANY and, therefore, COMPANY shall retain the right to use, without fee and for any purpose, such “know-how”, ideas, techniques, and concepts used or developed by COMPANY in the course of performance of the services of this Agreement and set forth in an executed SOW, FLIGHT, OSA, or MA.

11. Warranties. Any warranty offered by COMPANY for services provided herein shall be set forth in an executed SOW, FLIGHT, OSA, or MA, but in no instance does any warranty provided herein or in an executed SOW, FLIGHT, OSA, or MA exceed the warranties provided by any third-parties, including, but not limited to Microsoft, with respect to the third-Party’s product(s) and/or service(s). In the absence of any warranty language in an executed SOW, FLIGHT, OSA, or MA, COMPANY warrants and represents that services provided hereunder will not infringe, individually or collectively, any patent, copyright, trade secret, or other proprietary right of any third Party; and COMPANY has no reason to believe that any patent, copyright, trade secret, or other proprietary right of any third Party may be infringed. In the absence of any warranty language in the SOW, FLIGHT, OSA, or MA, COMPANY further warrants that all services performed pursuant to this Agreement will be performed in accordance with the general standards and practices of the information technology industry in existence at the time the services are being performed. IN THE EVENT THAT THERE IS NO WARRANTY SET FORTH IN THE SOW, FLIGHT, OSA, OR MA, THE FOREGOING EXPRESS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, ORAL OR WRITTEN, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TO THE EXTENT APPLICABLE.

12. Data Security.

  1. CLIENT agrees that the facilities and other resources used to store and/or process CLIENT’s data will employ reasonable and appropriate administrative, physical, and technical safeguards, to secure such data from unauthorized access, disclosure, alteration, and use. CLIENT further agrees that such measures will be no less protective than what is commercially reasonable in view of the type and nature of the data involved. COMPANY is not responsible for storing and/or processing CLIENT’s data.
  2. COMPANY will use industry-standard and up-to-date security tools and technologies such as anti-virus protections and intrusion detection methods in providing services under this Agreement. COMPANY will consider updating its tools and technologies during the course of this Agreement as industry standards change and updated tools and technologies become available. Still, COMPANY Makes no guarantees whatsoever as to the effectiveness of any of its security tools and technologies.
  3. COMPANY will reasonably ensure that its employees, subcontractors, and agents who perform work under this Agreement receive appropriate instruction as to how to protect data consistent with the provisions of this Agreement. The COMPANY will perform background checks on all personnel who have potential to access CLIENT’s data.
  4. COMPANY bears no responsibility whatsoever for any issue(s) that may arise, including, but not limited to, incidents such as data breaches, malware, ransomware, etc., as a result of any as a result of any issue, problem, or defect caused, directory or indirectly, by any third-Party’s (including, but not limited to, Microsoft), systems, programs, hardware, software, or the like, including issues that arise as a result of the third-Party’s acts or omissions.

13. Access to Data Response to Legal Demands or Requests for Data.

  1. Upon receipt of valid legal process (the “Legal Request”) seeking CLIENT-related data or information, COMPANY will attempt to redirect the requesting third Party to CLIENT and/or request that the third Party notify CLIENT of its Legal Request. If COMPANY’s redirecting efforts are unsuccessful, and provided COMPANY is not prohibited by law from doing so, COMPANY will provide commercially reasonable notice to CLIENT of the Legal Request, prior to disclosure of any of CLIENT’s data or information, which would include, to the extent permitted by law, a copy of the Legal Request received by COMPANY from the third Party. COMPANY will thereafter respond to the Legal Request in the time permitted unless CLIENT has taken appropriate legal steps (i.e., Motion to Quash or Motion for a Protective Order) to stop or limit COMPANY’s response.
  2. With respect to any legal process served on CLIENT for which CLIENT intends to respond, COMPANY will provide CLIENT with access to any CLIENT data or information in COMPANY’s possession together with any necessary encryption keys.

14. Security Incident Response. Upon becoming aware of any unauthorized access to any CLIENT’s data, if any, stored on COMPANY’s equipment or in COMPANY’s facilities, or unauthorized access to such equipment or facilities reasonably expected to result in loss, disclosure, or alteration of CLIENT’s data (each a “Security Incident”), COMPANY will: (1) promptly notify CLIENT at [insert email address] of the Security Incident; (2) investigate the Security Incident and provide CLIENT with detailed information about the Security Incident; (3) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident; (4) take prompt and appropriate corrective action aimed at preventing the reoccurrence of a similar Security Incident in the future; and (5) hold CLIENT harmless from any costs associated with a data breach clearly attributable to the actions or inactions of COMPANY.

15. Limitation of Liability. CLIENT agrees that COMPANY shall not be liable to CLIENT, or any third Party, for: (1) any liability claims, loss, damages or expense of any kind arising directly or indirectly out of services provided herein (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for loss of privacy, for corruption, damage and loss of data or programs, or economic loss for any reason including but not limited to infiltration of the CLIENT’s computers and softwares of any virus, malware, ransomware or other external debilitating programs or viruses, for failure to meet any duty including any statutory duty, duty of good faith or duty of reasonable care, for negligence, for economic loss, and for any other pecuniary or other loss whatsoever) (2) any incidental or consequential damages, however caused, and CLIENT agrees to indemnify and hold COMPANY harmless against such liabilities, claims, losses, damages (consequential or otherwise) or expenses, or actions in respect thereof, asserted or brought against COMPANY by or in right of third parties or (3) any punitive damages. For purposes of this Agreement, incidental or consequential damages shall include, but not be limited to, loss of anticipated revenues, income, profits or savings; loss of or damage to business reputation or good will; loss of CLIENTs; loss of business or financial opportunity; or any other indirect or special damages of any kind categorized as consequential or incidental damages under the law of the State of California. The COMPANY’s liability for any damages hereunder shall in no event exceed the amount of fees paid by CLIENT to COMPANY as of the date the alleged damages were incurred.

16. Termination.

  1. Termination for Cause: If either Party believes that the other Party has failed in any material respect to perform its obligations under this Agreement (including any Schedules or Amendments hereto), then that Party may provide written notice to the other Party’s management representative describing the alleged failure in reasonable detail. If the alleged failure relates to a failure to pay any sum due and owing under this Agreement, the breaching Party shall have ten (10) business days after notice of such failure to cure the breach. If the breaching Party fails to cure within ten (10) business days, then the non-breaching Party may immediately terminate this Agreement, in whole or in part, for cause by providing written notice to the management representative of the breaching Party. With respect to all other defaults, if the breaching Party does not, within thirty (30) calendar days after receiving such written notice, either (a) cure the material failure or (b) if the breach is not one that can reasonably be cured within thirty (30) calendar days, then the non-breaching Party may terminate this Agreement, in whole or in part, for cause by providing written notice to the management representative of the breaching Party.
  2. Termination for Bankruptcy: Either Party shall have the immediate right to terminate this Agreement, by providing written notice to the other Party, in the event that (i) the other Party becomes insolvent, enters into receivership, is the subject of a voluntary or involuntary bankruptcy proceeding, or makes an assignment for the benefit of creditors; or (ii) a substantial part of the other Party’s property becomes subject to any levy, seizure, assignment or sale for or by any creditor or government agency.
  3. Payment Due: The termination of this Agreement shall not release either Party from the obligation to make payment of all amounts then or thereafter due and payable.
  4. Permitted Delays: Each Party hereto shall be excused from performance hereunder for any period and to the extent that it is prevented from performing any services pursuant hereto in whole or in part, as a result of delays caused by the other Party or an act of God, or other cause beyond its reasonable control and which it could not have prevented by reasonable precautions, including failures or fluctuations in electric power, heat, light, air conditioning or telecommunication equipment, and such nonperformance shall not be a default hereunder or a ground for termination hereof (i.e. a “Permitted Delay”). COMPANY’s time of performance shall be enlarged, if and to the extent reasonably necessary, in the event: (i) that CLIENT fails to submit information, instructions, approvals, or any other required element in the prescribed form or in accordance with the agreed upon schedules; (ii) of a special request by CLIENT or any governmental agency authorized to regulate, supervise, or impact COMPANY’s normal processing schedule; or (iii) that CLIENT fails to provide any equipment, software, premises or performance called for by this Agreement, and the same is necessary for COMPANY’s performance hereunder. COMPANY will timely notify CLIENT of the estimated impact on its processing schedule, if any.

17. Equal Opportunity Employer. COMPANY is an Equal Opportunity Employer and does not discriminate in recruitment, hiring, transfer, promotion, compensation, development, and termination of its employees on the basis of race, color, sex, age, marital status, national origin, handicap, religious beliefs, veteran’s status or other protected category as required by applicable Federal, State and local laws. CLIENT likewise represents that it will not discriminate in the referral or acceptance of COMPANY’s personnel, including COMPANY’s employees, agents, and vendors, hereunder on the basis of race, color, sex, age, marital status, national origin, handicap, religious beliefs, veteran’s status or other protected category as required by applicable federal, state and local laws.

18. Indemnification. COMPANY shall defend, indemnify, and hold harmless CLIENT and its trustees, officers, agents, and employees from all suits, actions, or claims of any character, name, or description, including reasonable attorney’s fees and litigation expenses, brought on account of any injuries, damage or loss (real or alleged) sustained by any person or persons arising out of (1) grossly negligent acts or omissions of COMPANY, its employees, subcontractors or agents, including, but not limited to any claims for personal injury, including any injuries or damages sustained by COMPANY’s employees, property damage, or infringement of copyright, patent, or other proprietary rights; or (2) any other claims of any nature whatsoever arising out of the COMPANY’s performance of the services to be provided pursuant to this Agreement, or COMPANY’s failure to perform or comply with any requirements of this Agreement, including specifically but not limited to employment-related claims arising under the common law or based upon any federal, state, or local statutes, ordinances, or regulations.

19. Insurance. COMPANY will carry insurance to financially support indemnification of CLIENT as provided herein, and shall provide certificates of such insurance, upon request. Annual automatic renewals of the certificate of insurance must be requested from the COMPANY’s Insurance carrier and, upon CLIENT’s written request, sent to CLIENT upon the annual expiration date of the insurance policies.

20. Compliance with Applicable Laws. COMPANY warrants and represents that it will comply with all laws, including data protection and data privacy laws, applicable to the COMPANY’s performance of services of COMPANY under this Agreement.

21. Waiver. The rights and remedies provided to each of the parties herein shall be cumulative and in addition to any other rights and remedies provided by law or otherwise. Any failure in the exercise by either Party of its right to terminate this Agreement or to enforce any provision of this Agreement for default or violation by the other Party shall not prejudice such Party’s rights of termination or enforcement for any further or other’s default or violation or be deemed a waiver or forfeiture of those rights.

22. Assignment. This Agreement may not be assigned by COMPANY without the express prior written permission of CLIENT, which CLIENT agrees not to unreasonably withhold.

23. Governing Law. This Agreement is made under and will be construed in accordance with the laws of California without giving effect to that state’s choice of law rules.

24. Advertisement. COMPANY may not use the name CLIENT or any variation thereof for advertising or publicity purposes without first obtaining the written permission of CLIENT, which agrees not to unreasonably withhold.

25. Severability. If any provision of this Agreement is declared invalid by any tribunal, then such provision shall be deemed automatically modified to conform to the requirements for validity as declared at such time, and as so modified, shall be deemed a provision of this Agreement as though originally included herein. In the event that the provision invalidated is of such a nature that it cannot be modified, the provision shall be deemed deleted from this Agreement as though the provision had never been included herein. In either case, the remaining provisions of this Agreement shall remain in effect.

26. Notices. Each notice, request, or demand given or required to be given pursuant to this Agreement shall be in writing and shall be deemed sufficiently given if deposited in the United States Mail, first class, postage pre-paid, and addressed to the following designated parties:

Finchloom  [CLIENT NAME]
2815 Townsgate Rd, Suite 140  [CLIENT ADDRESS]
Westlake Village, CA   [CLIENT CITY, ST]
91361     [ZIP]

27. Non-Restrictive Relationship. Subject to the other provisions of this Agreement, COMPANY may provide the same or similar services to other clients and CLIENT may utilize other information technology service providers that are competitive with COMPANY.

28. Force Majeure. COMPANY shall be excused from liability for the failure or delay in performance of an obligation under this Agreement due to an event beyond its reasonable control including, but not limited to, a fire, a flood, an explosion, an earthquake, a natural disaster or any other act of God, as well as a pandemic, an epidemic, a recognized health threat as determined by any federal, state or local government or quasi-governmental authority (including the federal Centers for Disease Control), civil unrest, a strike or labor disturbance, war or threat of war, terrorism or a threat of terrorism, a governmental or quasi-governmental order or directive to “shelter in place”, or any other event, occurrence, order or directive similar to those enumerated above (each, a “Force Majeure Event”). Notice of COMPANY’s failure or delay in performance due to a Force Majeure Event must be given to CLIENT promptly but no less than ten (10) days prior to the required performance; provided, however, that any such notification may be on shorter notice if the circumstances and/or conditions giving rise to the Force Majeure Event occur within less than the aforementioned ten (10) day period.

29. Effective Date. The effective date of this Agreement shall be the date of CLIENT’s signature.

30. Captions. The section headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.

31. Entire Agreement. This Agreement, including the Schedule(s) and any addendums incorporated herein, represents the entire understanding of the Parties and may not be modified except by written agreement of the Parties and supersedes all prior written and/or oral agreements. This Agreement may be executed in counterpart signatures.

32. Amendments. This Agreement and the Schedule(s) may be amended only by an instrument in writing executed by the Parties hereto. Any written work order submitted by CLIENT shall not amend the terms of this Agreement and will only be considered (1) a statement of the work to be performed; (2) set forth any deadlines or schedules; and (3) the additional fees to be charged, if any, for any out of scope work or services stated on the work order.

33. Authority. Each Party warrants that it has the authority to enter into this Agreement and that entering into this Agreement is not restricted or prohibited by any existing agreement to which it is a Party.

34. Successors and Third-Party Beneficiaries. This Agreement shall inure to the benefit of COMPANY and CLIENT and any successors or assigns of COMPANY and CLIENT. No third Party shall have any rights hereunder.

35. Disclaimer of Warranty. To the extent permitted by applicable law and except for the Warranty of Services provide in Section 10 of the this Agreement, COMPANY masks no warranties that: (i) the services provided under this Agreement will meet CLIENT’s requirements; (ii) the services will be uninterrupted, timely, secure, or error-free; (iii) any viruses will be removed through the services provided by the COMPANY; or (iv) that CLIENT will achieve any specific results from the use of the COMPANY’s services.

36. Arbitration.

  1. It is understood and agreed that any claim arising out of the rendition or lack of rendition of services under this Agreement will be determined by submission to final and binding arbitration, and not by a lawsuit or resort to court process except as provided by law for judicial review or enforcement of arbitration proceedings.
  2. The parties to this Agreement forgo their right to have any dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. Each Party is encouraged to seek outside advice or counsel concerning this procedure.
  3. In rendering an arbitration award, the arbitrator will determine the rights of rights of the Parties according to the laws of the State of California. The prevailing Party will be entitled to their arbitrator fees and out of pocket costs from the losing Party, but each Party will each bear its own attorney’s fees.
  4. Arbitration proceedings will be administered by ADR Services, Inc. in Century City, California or other another alternative dispute resolution (“ADR”) COMPANY as agreed by the Parties. If the Parties do not agree upon a different ADR COMPANY, then ADR Services, Inc. in Century City, California will be the default ADR COMPANY.

IN WITNESS WHEREOF, the parties have executed this Master Services Agreement as of the date first above written.

Please contact Finchloom for official copy and signature section