FINCHLOOM MASTER SERVICES AGREEMENT ADD-ON FOR PHISHPREVENT
This Change Authorization Order ("Add-On Agreement") is between Customer and Finchloom ("The Company") and consists of these General Terms, the applicable Use Rights and SLAs, and any additional terms Finchloom presents when an order is placed. This Agreement takes effect when the Customer accepts these General Terms. The individual who accepts these General Terms represents that he or she is authorized to enter into this Agreement on behalf of the Customer.
WHEREAS, Company and Customer entered into an Information Technology Master Services Agreement (“Master Agreement”) pursuant to which the Customer retained the Company to provide a full range of information technology consulting services to the Customer; and
WHEREAS, the Customer wants to retain the Company to provide an additional service which combats email phishing with an Outlook Plug-In to submit suspicious emails for expert review, offered by an add-on program called PhishPrevent;
WHEREAS, this Add-On Agreement supplements the Master Agreement, which continues to be in full force and effect, except as amended herein;
NOW THEREFORE, in consideration of the mutual promises, covenants and agreements contained herein, the parties have agreed and do agree as follows:
The Master Agreement is hereby amended as follows:
Sections 8, 10 and 11 of the Master Agreement shall be deleted in its entirety and shall be replaced with the following:
8. Customer Responsibilities. In addition to any obligations and responsibilities described in the SOW OR ENGAGEMENT LETTER or elsewhere in this Agreement, Customer shall have shared responsibility with Company regarding the following:
(a) To ensure that the necessary business and application knowledge is available and conveyed from the Customer’s existing support team to Company’s support team.
(b) 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 current business systems and environments throughout the life of the engagement.
(c) Provide at its facility, office space and equipment for Company’s on-site employees. Access will also be provided to the Customer’s source libraries, test systems, and test data.
(d) Provide remote access capability and/or access to its work facility to enable Company’s project team to access the Customer’s information technology system for after hours or weekend Services as required.
(e) Customer 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 that Customer declines or fails to assign an employee or representative to be present during such hours, Customer waives any and all claims for any property damage or loss that occurs during such time that Company’s employee(s) is on the Customer’s work facility.
(f) Provide passwords and/or administrative access to Company employees as needed.
(g) Provide Customer’s employees, staff and agents 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.
10. Limitation of Liability. Customer agrees that Company shall not be liable to Customer, 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 Customer’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) for (2) any incidental or consequential damages, however caused, and Customer 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 for (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 Customers; 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. Company’s liability for any damages hereunder shall in no event exceed the amount of fees paid by Customer to Company as of the date the alleged damages were incurred.
11. Indemnification. Each party shall indemnify, defend and hold harmless the other, its employees, principals (partners, shareholders or holders of an ownership interest, as the case may be) and agents, from and against any third party claims, demands, loss, damage or expense relating to bodily injury or death of any person or damage to real and/or tangible personal property directly caused solely by the negligence or willful conduct of the indemnifying party, its personnel or agents in connection with the performance of the Services hereunder. To the extent that such claim arises from the concurrent conduct of Customer, Company and/or any third party, it is expressly agreed that Company’s liability shall be limited by the terms and provisions of paragraph ten (10) herein and that, with respect to any remaining obligations to pay any third party claims, demands, losses, damages or expenses that are not limited by the terms and provisions of paragraph ten (10) herein, each party's obligations of indemnity under this paragraph shall be effective only to the extent of each party's pro rata share of liability. To receive the foregoing indemnities, the party seeking indemnification must promptly notify the other in writing of a claim or suit and provide reasonable cooperation (at the indemnifying party's expense) and full authority to defend or settle the claim or suit. The indemnifying party shall have no obligation to indemnify the indemnified party under any settlement made without the indemnifying party's written consent. Notwithstanding the foregoing, the Company shall not have any duty to indemnify, defend or hold harmless Customer, its employees, principals (partners, shareholders or holders of an ownership interest, as the case may be) and agents, from and against any third party claims, demands, loss, damage or expense relating 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 Customer’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 arising out of the services provided herein and any malfunction related thereto.
The following provisions shall be added to the Master Agreement, as follows:
15. Disclaimer of Warranty. To the extent permitted by applicable law and except for the Warranty of Services provide in Section 9 of the Master Agreement, Company makes no warranties that: (i) the services provided under this Add-On Agreement will meet Customer’s requirements; (ii) the services will be uninterrupted, timely, secure, or error-free; (iii) any viruses will be removed through the services; or (iv) that Customer will achieve any specific results from the use of the services.
16. Arbitration. It is understood and agreed that any claim arising out of the rendition or lack of rendition of services under this Add-On 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.
All parties to this Add-On Agreement, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. You may wish to seek outside advice or counsel concerning this procedure. This Arbitration Agreement may be rescinded within 30 days from the date of your signature below by delivery of written notice, sent by certified mail, return receipt requested, to this office.
In rendering the 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, but the parties will each bear their own attorneys’ fees.
The proceedings will be administered by ADR Services, Inc. in Century City or other ADR company as agreed by the parties in accordance with their then-existing rules of Practice and Procedure. This Add-On Agreement shall be governed under the Laws of the State of California.
The terms and provisions set forth in this Add-On Agreement shall modify and supersede all inconsistent terms and provisions set forth in the Master Agreement, but except as expressly modified and superseded by this Add-On Agreement, the terms and provisions of the Master Agreement are ratified and confirmed and shall continue in full force and effect, Customer hereby agreeing that the Master Agreement and other related documents are and shall continue to be outstanding, validly existing and enforceable in accordance with their respective terms.