Master Services Agreement

Last Updated on 18.01.2025

RetroFit Technologies, Inc. (“RetroFit”)
350 Myles Standish Blvd
Taunton, MA 02780
Suite 202
Phone: 508-478-2222
www.retrofit.com

1. Introduction. This Services Agreement is between RetroFit and the client (“Client”) who has executed a Proposal (as defined below) with RetroFit.  The term “Agreement” means the terms of this Services Agreement along with the terms of the Proposal.    Under the terms of this Agreement, RetroFit will use commercially reasonable efforts to provide Client the services described in the Proposal, including as applicable Managed Services (the “Services”).  “Managed Services” means those Services provided to Client by RetroFit to monitor, manage and/or maintain certain IT components or services (such as servers, workstations, backup services, e-mail services, and hosting services).  “Managed Devices” means the servers, workstations, laptops, and other intelligent network devices and equipment that have been specifically identified and documented by RetroFit as being covered by Managed Services.
2. Services

• Proposal. The Services are described in the proposal, schedule, statement of work, quotation, or other written documentation or communication specifying the scope of services and fees that is agreed by the parties (“Proposal”).  Services may be added or modified through an agreed new Proposal, a Statement of Work, Change Order, or other Client request for out-of-scope work accepted by RetroFit.  RetroFit may, but is not required to, provide any requested Services.  All such additional Services are subject to the terms of this Agreement.  Unless otherwise agreed in the Proposal, RetroFit is entitled to rely on requests for additional Services made by any Client user, including requests for on-site Services and Services outside of Regular Business Hours (defined below).  In all cases, additional or modified Services will be governed by the terms of this Agreement. In the event of any conflict between the terms of this Agreement and the terms in the Proposal, the terms of this Agreement shall control unless the Proposal specifically identifies its intent to modify the terms of this Agreement and the Section of this Agreement being modified.
• Estimated Dates.  The Proposalmay specify estimated dates for beginning and/or completing Services.  Any estimated dates are for project planning purposes only and are not a guarantee; actual dates may vary if Client fails to provide required information, assistance, and/or decisions, or for other reasons.
• Hours of Service.  Services will be provided by RetroFit during Regular Business Hours, unless otherwise agreed by “Regular Business Hours” are defined as weekdays between 9:00 a.m. and 5:00 p.m. Eastern time, excluding holidays on which RetroFit is closed.   RetroFit charges a higher, premium rate for work done outside of Regular Business Hours.
• Location of Services and Service Conditions.  Unless otherwise agreed in the Proposal, all Services will be performed remotely by RetroFit from RetroFit’s locations. For Services performed at other locations, Client is responsible for providing RetroFit with proper and adequate permission to enter such locations and for ensuring the safety of such locations.  RetroFit may delay or decline providing Services if RetroFit believes the conditions are not safe. Outside work will only be performed weather permitting.  RetroFit will in no event be obligated to perform on-site Services at any home office.  On-site Services will be provided for business office locations only.
• Warranty/Maintenance Service.  RetroFit does not provide warranty or maintenance service for any hardware or software unless expressly agreed in writing by RetroFit.  Client may request that RetroFit provide certain products and services that are also covered under the manufacturer’s warranty in order to expedite repairs to Client systems. Client is responsible for any potential impact that this may have on Client’s manufacturers’ warranty. Client is also responsible for payment for all requested products and services provided by RetroFit related to the repair, replacement, and maintenance of third party computer hardware and software that may have been otherwise covered under the manufacturer warranties.
• Third-Party Tools.  RetroFit uses various third-party software tools and services (whether procured by RetroFit or Client, “Third-Party Tools”) to assist in providing Services.  Certain Third-Party Tools may be provided to Client by RetroFit for use by Client in connection with the Services. Client acknowledges that some Third-Party Tools may include software with artificial intelligence capabilities and hereby consents to the use of such capabilities. Client agrees as follows with respect to Third-Party Tools:
• Client agrees to and will abide by all Third-Party Tool license and agreement terms for Third-Party Tools used or provided by Client.
• Client agrees that RetroFit is not responsible for any defects in, or issues or damages caused by, any Third-Party Tools (including data breaches caused by any Third-Party Tools).
• Client may use Third-Party Tools provided by RetroFit solely in connection with the Services.  Client has no right or license to use such Third-Party Tools outside the scope of the Services or after termination of the Proposal, unless otherwise agreed by RetroFit.
• Purchase of Third-Party Items.  As agreed in the Proposal, Client may from time to time purchase from RetroFit third-party hardware, software, and software-based services (“Purchased Items”).  All sales of Purchased Items are final, and Client shall have no right to return Purchased Items except pursuant to applicable manufacturer warranty terms. If the Purchased Items include Microsoft software licenses, including for Microsoft 365, then Client agrees that such Microsoft licenses are governed by the terms and conditions of the Microsoft Customer Agreement at https://www.microsoft.com/licensing/docs/customeragreement and that Client will be a party to such Microsoft Customer Agreement with Microsoft. Title to Purchased Items that are hardware and risk of loss or damage thereto will pass to Client at the time of delivery of such Purchased Items to Client.  CLIENT AGREES THAT RETROFIT IS NOT THE MANUFACTURER OF THE PURCHASED ITEMS, AND THAT RETROFIT MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE PURCHASED ITEMS OR ANY RELATED SERVICES.  To the extent it is able, RetroFit will pass along all warranties (including related terms and limitations) provided by the original manufacturer of the Purchased Items.
• Restrictions and Compliance.  Client shall not: (1) use or allow use of the Services to provide time-sharing, outsourcing, service bureau, or other IT services to third parties; or (2) reverse engineer, decompile, disassemble, sublicense, transfer, modify or change any portion of software provided to Client by RetroFit in connection with the Services, or attempt to do any of the foregoing.  Client agrees to comply with all applicable laws, rules and regulations when using the Services and its IT systems.
• Client Obligations. Client agrees to: (1) cooperate with and assist RetroFit in the performance of the Services, and interact with RetroFit in a professional and courteous manner; (2) remain solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client data, information, and materials (“Client Data”); and (3) furnish full and safe access to Client’s office, network and systems as needed for RetroFit’s performance of Services; (4) Provide all passwords necessary for RetroFit’s personnel to perform requested tasks upon RetroFit’s request.   RetroFit may request a unique administrative password for the purpose of providing ongoing maintenance and support of Client’s network and systems. Client agrees that in approving a unique administrative password to RetroFit  that Client assumes full responsibility and any liability resulting from that decision, unless due to RetroFit’s willful misconduct or gross negligence; (5) Identify an employee to act as Client’s primary contact and coordinator for RetroFit’s Services; and (6) Maintain and pay for valid licenses, warranties and support contracts with respective third-party vendors for hardware, operating software and application software used in Client’s network and systems.

3. Invoicing and Payment Terms

• Invoicing and Payment. RetroFit shall submit invoices for fees as set forth in the Proposal and reimbursable costs and expenses, and Client shall pay each invoice. The initial invoice will be issued upon execution of the Proposal. All amounts are due in the currency stated on the invoice and within thirty (30) days after invoice date.  If Client elects to pay via credit card any surcharges or convenience fees that RetroFit incurs will be reimbursed by Client. Past due invoices that are not paid within 10 days after written notice (which may be by email) are subject to an initial late fee equal to 3% of the outstanding amount, and additional late fees of 10% of the outstanding amount every 30 days thereafter, or the greatest amount allowed by applicable law, whichever is less. Client shall be responsible for RetroFit’s costs of collecting late payments. Fees and rates may be adjusted by RetroFit upon renewal.  To the extent any fees are based on charges from third-party providers, such fees may increase upon notice from to time proportionately based on increases imposed by such third-party providers.  Client’s agreement to the Proposal constitutes a valid purchase order for the Services associated with the Proposal including any additional requested Services performed related to but outside the scope of the Proposal.
• Taxes. Client agrees to pay all federal, state, local and other taxes based on this Agreement, the Services or its use. If Client claims tax-exempt status for any purpose in connection with this Agreement, Client represents and warrants that it is a tax-exempt entity and will provide Client upon request with a correct copy of Client’s tax-exempt certification.
• Changes. Due to the nature of business, any change order that either increases or decreases to a maximum dollar value of $500 (per month, as applicable) will be automatically invoiced without both parties’ acknowledgement. The increase or decrease will be reflected on the 1st of the following month invoice. Any increase that exceeds $500 will require an acknowledgement change order by both parties prior to additional invoicing.
• Credit Authorization.  Invoice terms are subject to Client credit approval.  Client hereby irrevocably authorizes RetroFit and gives its express consent under all applicable laws for RetroFit to obtain credit information and check financial references regarding Client for the purpose of assessing Client’s credit worthiness. Client will promptly execute and deliver to RetroFit such documents and assurances which may be reasonably requested from time to time to carry out the intent and purpose of such assessments.
• Invoice Disputes.  Client may withhold payment of fees disputed by Client, but only if: (i) such dispute is made in good faith; (ii) Client provides RetroFit with notice of such dispute prior to the invoice due date; (iii) Client pays any undisputed portions of the invoice; and (iv) Client negotiates in good faith with RetroFit a prompt resolution of the dispute.  Client waives any right to dispute an invoice more than sixty (60) days after the invoice date.  RetroFit may correct billing errors at any time.
• Expenses. Client shall reimburse RetroFit for all reasonable out-of-pocket expenses incurred by RetroFit in connection with this Agreement, including but not limited to travel, lodging, meals, and shipping expenses.  All travel must be pre-approved by Client.

4. Term; Termination

• Term. The Proposal will specify the term for this Agreement.  Except for a Proposal applying to one-time professional Services only, and unless otherwise specified in the Proposal, this Agreement automatically renews for subsequent one-year renewal terms immediately following the end of the initial term of the Proposal and each renewal term, unless either party gives at least 30 days written notice of termination prior to the end of the current term.  This Agreement is non-cancellable and may not be terminated without cause.
• Termination for Breach; Suspension.  Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach is not cured within thirty (30) days after written notice. Notice of the breach must include specific details regarding the breach.  RetroFit may suspend some or all of the Services upon notice to Client if Client materially breaches this Agreement, including but not limited to by not paying any fees or costs due hereunder that are not disputed in good faith by Client by the due date.  Client agrees that RetroFit will not be liable to Client for suspension of Services due to Client’s failure to pay or other material breach of this Agreement.
• Liquidated Damages.  If Client attempts to terminate this Agreement without cause, or if RetroFit terminates this Agreement due to Client’s material breach, then: (i) all fees that would have come due under the Proposal for the remaining term of the Proposal shall become immediately due and payable by Client to RetroFit as liquidated damages, without any further demand by RetroFit, and (ii) Client shall pay to RetroFit all pre-paid, documented out of pocket expenses incurred by RetroFit in reliance on the terminated Services. The parties acknowledge that RetroFit’s actual damages arising from such termination would be difficult to determine with accuracy and, accordingly, have agreed to the foregoing liquidated damages, which the parties acknowledge is a reasonable estimate of RetroFit’s potential losses.
• Transition Services.  So long as Client has paid all its fees in full, upon termination RetroFit will provide commercially reasonable Services in support of Client’s transition to internal support or another services provider, in accordance with RetroFit’s then-standard transition services procedures and at RetroFit’s then-current rates.
• Survival.  Sections 5, 6, 7(c), 8, 9, 10, and 11 of this Agreement shall survive termination or expiration of this Agreement. Termination of this Agreement will not affect any accrued rights or liabilities of either party.

5. Intellectual Property

• Ownership.  Client agrees that RetroFit and its third-party licensors and suppliers own all right, title and interest, including all intellectual property rights, in the Services, the results of the Services, and all software, tools, scripts, and configurations including RetroFit documentation, methods, procedures, and materials provided or used by RetroFit (“RetroFit IP”).  RetroFit reserves all rights in the RetroFit IP not expressly granted under this Agreement.   Client shall not: (1) use or allow use of RetroFit IP to provide service bureau or other IT services to third parties; or (2) reverse engineer, decompile, disassemble, sublicense, transfer, modify or change any RetroFit IP, or attempt to do any of the foregoing.  Subject to payment for the associated Services, except to the extent a third-party provider’s license terms apply, RetroFit grants Client a worldwide, non-exclusive, non-transferable,  royalty-free license to use RetroFit IP incorporated in deliverables provided by RetroFit to Client during the term of such Services, solely in support of Client’s business operations.
• Client Data and Systems.  Client retains sole ownership of all Client Data.  Client shall defend, indemnify, and hold RetroFit and its officers and employees harmless against any claim or suit, and all associated damages, costs, liabilities, and expenses, which alleges that any Client Data or that RetroFit’s access to any software or hardware licensed or created by Client infringes or misappropriates a third-party intellectual property or other right.

6. Confidentiality

• Definition.  “Confidential Information” means any business, financial or technical information or data that is disclosed by one party to the other party pursuant to this Agreement that is marked as confidential or proprietary or that would reasonably be recognized as confidential due to the nature of the information or circumstances surrounding its disclosure.  Confidential Information does not include information that: (i) is or becomes publicly known or available without breach of this Agreement; (ii) is received by a receiving party from a third party without breach of any obligation of confidentiality; or (iii) was previously known by the receiving party as shown by its written records.  The terms of this Agreement and the Proposal, information relating to the negotiation of this Agreement and the Proposal, and RetroFit IP, are the Confidential Information of RetroFit.
• Confidentiality Obligations.  A receiving party agrees: (i) to use the Confidential Information of the disclosing party solely for the purpose of performing its obligations or exercising its rights under this Agreement; (ii) not to, disclose the Confidential Information to third parties, except to its employees and contractors who have a need to know such information for the purpose of this Agreement; and (iii) to protect the disclosing party’s Confidential Information with the same degree of care that it uses to protect its own Confidential Information, but no less than a reasonable standard of care.  A receiving party may disclose Confidential Information of the disclosing party as required by law or court order; in such event, unless prohibited by law, such party shall inform the other party as soon as practicable, prior to any such required disclosure any such required disclosure and cooperate with the disclosing party in limiting the scope of any such required disclosure.
• Remedies.  Each party acknowledges and agrees that any violation of this Section may cause such party irreparable injury for which such party would have no adequate remedy at law, and that such party shall be entitled to seek preliminary and other injunctive relief against the other party for any such violation, without limiting any other remedies or rights that such party may have at law or in equity.
• Return or Deletion.  Upon the request of the disclosing party, the receiving party will return to the disclosing party or destroy all the Confidential Information delivered or disclosed to the receiving party, together with all copies in existence thereof at any time made by the receiving party; provided that, the receiving party may maintain the other party’s Confidential Information in its standard information systems backup programs or as required by law or policy, subject to the confidentiality terms herein.

7. Warranties and Disclaimer

• Purchased Items. RetroFit does not offer or provide warranty services on any Purchased Items.  RetroFit will pass along any manufacturer warranties on Purchased Items, to the extent that it is able.  Client is responsible for working with individual product manufacturers on warranty issues.  If within the scope of agreed Services, at a mutually agreed fee, RetroFit will help coordinate the resolution of product warranty issues.
• Limited Warranties.  Each party warrants that it has full authority to enter into this Agreement and is not bound by any contractual or legal restrictions from fulfilling its obligations hereunder.  RetroFit warrants that the Services will be provided in a professional and workmanlike manner, using qualified personnel. Client must provide notice of a breach of the foregoing warranty, along with substantiating documentation, within thirty (30) days after the delivery of the Services.  If Client does so, RetroFit will, as Client’s sole remedy, use reasonable commercial efforts to correct the breach at no additional charge.  Client warrants that it has all required licenses and consents from third parties authorizing RetroFit’s access and use of software, documentation, and data made available to Client by such third parties, as required for RetroFit to perform its Services.
• Disclaimer.  RetroFit does not warrant that the Services will be provided uninterruptedly or error-free.   Except to the extent set forth in the Proposal, Client agrees that it has the sole responsibility for securing and backing up its data.  Client further agrees that: (i) RetroFit does not promise or guarantee that it will be able to resolve all issues or “bugs” in any software, systems or technology (“Systems”), and (ii) a failure by RetroFit to resolve any issue or series of issues in a System is not a breach of this Agreement.  RetroFit is in no way liable for defects or “bugs” in any Systems, or for correcting errors introduced into data or software due to failure of Systems, or for any cost of reconstructing software or lost data. RETROFIT IS NOT RESPONSIBLE FOR CLIENT’S FAILURE TO MAINTAIN ADEQUATE BACKUPS, NOR FOR THE COST OF RECONSTRUCTING DATA. Except as expressly set forth in this Agreement, RetroFit and its suppliers make no warranties, express or implied, including but not limited to any implied warranties of merchantability; fitness for a particular purpose; or arising as a result of Client usage in the trade or by course of dealing.

8. Indemnification

• Mutual Indemnity.  Each party will defend, indemnify and hold harmless the other from and against any and all liability, damages, losses, claims, actions, judgments and costs, including reasonable attorney’s fees (collectively “Losses”), for damage to any tangible property and for injury to or death of persons, including employees or agents of such other party performing work under this Agreement, caused by the willful misconduct or negligent acts or omissions of the indemnifying party, its agents or employees.
• Client Indemnity.   If RetroFit or any of its officers, employees or contractors becomes involved in any capacity in an action, proceeding or investigation brought by or against any person, including Client or any Client affiliate, related to the Services provided under this Agreement, Client will reimburse RetroFit for its legal and other fees and expenses (including RetroFit fees for time spent) incurred in connection therewith, as such fees and expenses are incurred.  Client will indemnify, defend, and hold RetroFit harmless from and against all claims against RetroFit and associated Losses arising out of or related to the Services, except as set forth in Section 11(a) and except to the extent that a court of competent jurisdiction shall have determined by a final judgment that such Loss primarily resulted from the gross negligence or willful misconduct of RetroFit in rendering Services.

9. Liability
   • General. The parties agree that it is impossible to guarantee: (i) the trouble-free performance and security of computer hardware, software, networks, environments, systems; (ii) the reliability and securityof any technology or technology-related asset; and (iii) the applicability, outcome or performance of any training or the behavior of any human resources, all regardless of whether procured, provided, installed, managed, supported, administered, trained and/or supervised by RetroFit, or in any way associated with the Services.  Accordingly, Client and RetroFit agree to the limitations of liability and damages in this Section.  Client agrees that the maximum aggregate liability of RetroFit or any of its suppliers relating to this Agreement and the Services shall be limited to the amount of fees actually received by RetroFit from Client under this Agreement during the prior three (3) months.  In no event shall either party or any of its suppliers be liable for any special, incidental, indirect, cover, consequential, exemplary or punitive damages; any damages based on injury to person or property or death; or any lost sales, profits or data or loss of use of systems even if a party is told that any of such damages may occur.  In no event is RetroFit liable for any systems related to medical devices, other life-saving devices, real time controls for critical processes, or other systems the failure of which might cause injury or death, including any interface to any such systems.  The foregoing limitations of liability shall not apply to tangible property damage, death or personal injury caused by the willful misconduct or gross negligence of a party.  The fees charged by RetroFit under this Agreement are calculated with specific reference to the level of liabilities undertaken by RetroFit hereunder.
   • Security.
     • RetroFit may provide Services designed to assist in securing Client’s technology environment.  However, Client agrees that Client remains solely responsible for the security of its organization and its systems, developing its own security policy, and periodically testing its security to make sure it meets the requirements of its security policy. Due to the nature of malicious actors and governments, RetroFit cannot and does not guarantee or certify the security of any current or future Client systems or networks.  Any review or recommendations made by RetroFit regarding the security of Client’s systems and networks are made in good faith but are not guaranteed to be accurate, complete, or successful in securing Client’s systems and networks.  Any changes made to a Client network or system may have direct or indirect impacts that are negative to security.  RetroFit cannot anticipate every possible consequence of such changes.
     • Unless expressly set forth otherwise in the Proposal,  Services provided by RetroFit will not include the remediation or restoration of systems affected by a data breach, ransomware or other security event.  RetroFit may in its discretion assist Client with such matters at its standard rates (unless a different fee arrangement is agreed).  Client hereby releases, indemnifies, and holds harmless RetroFit and its employees, agents, officers, and directors from all claims, liability, losses, damages, and expenses including attorney’s fees, related to a security breach or event involving Client systems or Client data unless a court determines that such security breach or event is caused solely by RetroFit’s gross negligence or willful misconduct.
     • Without limiting the foregoing, Client is solely responsible for security and other issues associated with: (a) use by Client personnel of personal devices with Client Data and systems, and (b) accessing Client Data and systems from outside Client’s office.
   • Cyber Insurance.  Client is specifically advised to obtain appropriate cybersecurity insurance to cover damage caused by data breach, ransomware, and other cybersecurity issues.  Client should evaluate and independently determine its coverage needs for its cybersecurity and related insurance. Upon request, Client will provide RetroFit with information regarding Client’s cybersecurity insurance for RetroFit’ records.   RetroFit may in its sole discretion, upon request and at RetroFit’s applicable rates, assist Client in Client’s applications for cybersecurity insurance, but Client is solely responsible for attesting to the content of its insurance applications.  RetroFit may in its discretion carry its own insurance coverage for cybersecurity or data breaches.  Client agrees that any such coverage is not intended to, and will not, cover any intrusions or losses to Client systems or data.
   • Assistance with Compliance.  RetroFit may, as agreed in the Proposal, assist Client in reviewing Client’s compliance with the technical aspects of certain laws, regulations, and standards. The parties agree that, in connection with any such Services:

• RetroFit does not provide any certification services and does not certify Client’s compliance with any laws, regulations, or standards.
• RetroFit also does not provide any legal services or advice and does not warrant or guarantee that its Services will satisfy any Client  compliance or legal obligations.  Client is specifically advised to obtain and use legal counsel to provide legal advice regarding Client’s compliance requirements and to review the Services and deliverables provided for compliance with laws, regulations, standards, and other requirements.
• If compliance requirements change during the term of the Proposal, the parties will negotiate in good faith an increase in the fees for providing such compliance-related services.

10. Assignment

Neither party may assign this Agreement without the prior written consent of the other party, except that such consent shall not be necessary for an assignment made to a party’s successor in connection with the sale of all or substantially all of such party’s business or portion of such party’s business to which this Agreement relates, so long as such successor agrees in writing to the terms of this Agreement. Nothing herein shall limit RetroFit’s right to assign its right to receive and collect payments hereunder.

11. General
    • Security Interest. Client hereby grants to RetroFit a security interest in any and all Purchased Items, until such time as those Purchased Items are paid in full by the Client, in order to secure Clients’ obligations to RetroFit.  Client agrees that in the event of default in any payment, RetroFit shall have, in addition to its rights under applicable law, the right to immediately repossess any and all Purchased Items previously sold to Client, but not fully paid for by Client, without further operation of law and without notice to Client. Client further agrees to pay for any and all costs, including reasonable attorney’s fees, and other applicable costs which RetroFit incurs as a result of said repossession. Client further agrees to execute any additional documents, at Client’s expense, to perfect or continue the security interest created by this Agreement.
    • Export.  Client acknowledges and agrees that the Purchased Items, or any other software, technical information, or technology provided pursuant to this Agreement may be subject to export and economic sanction laws, rules and regulations .  Client agrees not to export or re-export the Purchased Items, or any other technology into any country or to any person or entity in violation of any export or economic sanctions laws.
    • Publicity.  RetroFit may include Client’s name and logo in a list of RetroFit clients and as a user of the Services.
    • Independent Contractors. The parties are independent contractors, and nothing in this Agreement shall be construed as creating a joint venture, partnership, agent or employment relationship between RetroFit and Client.
    • Non-Solicitation. Unless agreed in writing by RetroFit, Client shall not, at any time during the term of this Agreement and for a period of one (1) year following termination of this Agreement (the “Restricted Period”), solicit, hire or retain (each such action a “Recruitment”) any current or former employee or independent contractor of RetroFit with whom Client had business contact during the twenty-four (24) month period immediately prior to any such Recruitment (“Lookback Period”) as a result of the relationship between RetroFit and Client reflected in this Agreement (“Restricted Personnel”).

The foregoing restriction applies only if the Restricted Personnel is Recruited to perform services for Client or any third party that are the same or similar to those services that such Restricted Personnel performed for RetroFit during the Lookback Period, or services that compete with RetroFit’s business to which the Restricted Personnel materially contributed (“Restricted Services”).  During the Restricted Period, Client shall not: (1) cause or encourage Recruitment by any party of any Restricted Personnel to perform Restricted Services; (2) cause or encourage any Restricted Personnel to reduce or terminate such Restricted Personnel’s relationship with RetroFit; or (3) otherwise interfere with the employment or contracting relationship between RetroFit and any Restricted Personnel.

For purposes of this Section, a person ceases to be considered Restricted Personnel twelve (12) months after such person’s employment or engagement with RetroFit is terminated.

If RetroFit agrees in writing for Client to hire or engage Restricted Personnel, then, Client will pay RetroFit a fee equal to the greater of: (A) such Restricted Personnel’s most recent annual salary and bonus or (B) the salary and bonus offered to such Restricted Personnel by Client. Client agrees that this fee is not excessive, as a fair and reasonable estimate of the loss suffered by RetroFit as a result of any Client hiring or engaging any Restricted Personnel.

• Compliance with Laws. Each party agrees to comply with all applicable laws, rules and regulations in connection with this Agreement.
• Notices. Any notice or other communication required or permitted in this Agreement shall be in writing and delivered to the addresses listed on the Proposal either: (i) by personal delivery; (ii) by certified mail; or (iii) by nationally recognized overnight courier, and shall be effective upon receipt.
• Integration. This Agreement (including the Proposal) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior proposals, negotiations, conversations, discussions and agreements between the parties concerning the subject matter hereof.  Client specifically acknowledges and agrees that, in entering into this Agreement, Client has not relied on any information or promises that are not specifically set forth in this Agreement.  RetroFit will have no obligation to provide any services, software, networking, or hardware except as specifically set forth in this Agreement.  Any additional or conflicting terms on any purchase order for any products or services covered by this Agreement shall be void and without effect unless agreed to in a separate writing signed by both parties.
• Agreement Updates. RetroFit may from time to time update the terms of this Agreement, and deliver an updated Agreement to Client by email or by mail to Client’s principal business contact.   If Client does not provide written notice to RetroFit of an objection to the updated Agreement terms within 30 days of receipt, then the terms of the updated Agreement shall be deemed agreed to by Client and shall replace the terms of this Agreement (as may have been previously modified).  Other than the foregoing, this Agreement may not be modified or waived except in a written document, signed by both parties.
• Informal Dispute Resolution. Each party shall attempt in good faith to resolve any controversy, claim or dispute of whatever nature arising out of or relating to this Agreement (“Dispute”) promptly by negotiation between executives or managers who have authority to settle the Dispute and who are at a higher level of management within each of the parties’ organizations than the parties’ appointed project managers.  Each party shall provide the other with all information and documentation relied upon by the party to substantiate its position with respect to the Dispute. If the Dispute has not been resolved through negotiation within thirty (30) business days of the initiation thereof, the parties may make a good faith attempt to settle the Dispute by mediation conducted by a mutually agreed mediator.
• Applicable Law and Jurisdiction. This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the Commonwealth of Massachusetts, without regard to conflict of laws principles.  The parties agree that the United Nations Convention on Contracts for the International Sales of Goods does not apply to this Agreement.  Each of the parties to this Agreement irrevocably consent to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and the United States District Court for the District of Massachusetts, as well as to the jurisdiction of all courts to which an appeal may be taken from such courts, for the purpose of any suit, action or other proceeding arising out of any of their obligations hereunder or with respect to the transactions contemplated hereby.  Each of the parties to this Agreement expressly agree to submit to the jurisdiction of such courts for the purposes of resolving any dispute between the parties and waive any and all objections they may have to venue in such courts.
• Force Majeure. Except for Client’s payment obligations, each party shall be excused from performance and shall not be liable for any delay or failure to perform caused by the occurrence of events outside of their reasonable control, including but not limited to war, terrorism, sabotage, insurrection, riot or other act of civil disobedience, labor disturbance or shortage, act of public enemy, failure of the Internet, pandemic, epidemic, act of any government affecting the terms hereof, explosion, hurricane, earthquake, flood or other act of God.
• Third-party Beneficiaries. There are no intended third-party beneficiaries of this Agreement, and nothing in this Agreement may be relied upon by, or shall benefit, any party other than RetroFit and Client.
• Severability. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, then the invalidity or unenforceability shall not affect the other provisions of the Agreement and all provisions not affected shall remain in full force and effect.  Both parties will attempt to substitute with a valid or enforceable provision, which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
• Headings and Counterparts. Headings to clauses are for ease of reference only and will not affect the interpretation of this Agreement. This Agreement may be executed in any number of counterparts and by the parties upon different counterparts, each of which shall be deemed to be an original, but which together shall constitute one and the same agreement.
• Electronic Signatures.The parties agree that this Agreement and the Proposal may be submitted and signed electronically by digital signatures or other electronic manifestation of acceptance.  Such signatures will be fully binding on the parties, in the same manner as if physically signed and submitted by a party.  Each party waives any objection that its digital signatures and acceptances are not valid.

Click here for the December 31, 2021 version of the Services Agreement