SUMMARY OF SIMILARITIES IN THE AGREEMENTS
I. Description of services and equipment
Clause 1 in both agreements: – Both agreements provide that the description of the
services and equipment will be contained in a statement of Work (SOW) which will be
agreed upon by both parties.
II. System
Clause 2.1 in Techrug Agreement and Clause 1 (e) in original agreement
The definition and requirements of operating the system are similar in both
requirements.
III. Advice/Instructions
Clause 2.5 in Techrug Agreement and Clause 1(f) in original agreement
Both agreements provide that they may provide clients with specific advice and
directions related to provision of the Services or the maintenance or administration of
the System. The clients will be expected to carry out these instructions for their
efficient use of the system.
The wording in these clauses is similar in all aspects.
IV. Confidentiality and Non-Disclosure
Clause 5 in Techrug Agreement and Clause 4 in Original Agreement
Both agreements undertake to uphold confidential information supplied by the client
and not to disclose such information to third parties unless they acquire permission
from the client.
V. Standard Clauses
Clauses 24, 26, 27, 28, 29, 30,31,32 and 34 in Techrug Agreement and Clause 10
(a-n) in Original Agreement
These clauses which include disclaimers, amendments, the applicable law, waivers.
Force majeure, assignments, data access and the binding power of the entire
agreement on the parties appear in both agreements and have the same legal effect
though the phrasing may be different.
SUMMARY OF DIFFERENCES IN THE AGREEMENTS
I. Third party vendors/service providers
Clause 2.3 in Techrug Agreement and Clause 1 (d) in original agreement
The Techrug agreement provides that it will not have any liability whatsoever for
the quality, functionality or operability of any Third-Party Products or Services,
and MSP will not be held liable as an insurer or guarantor of the performance,
downtime of usefulness of any Third-Party Provider. On the other hand, the
original agreement provides that in the event the MSP requires to use third party
contractors, they will guarantee and remain ultimately responsible for all work
subcontracted to third parties.
II. Term and termination of agreement
Clause 3 in Techrug Agreement and Clause 7 in original agreement
There are aspects of similarity under these clauses. However, the Techrug
agreement provides that MSP may terminate a specific Order if Client fails to pay
any applicable fees due for that Order within 30 days after receipt of written
notice from MSP of non-payment; and/or terminate this Agreement or an Order if
Client commits any other material breach of this Agreement and fails to cure such
breach within fifteen (15) days after receipt of written notice from MSP.
On the other hand, the original document provides that the MSP shall have the
right to terminate the agreement if the defaulting Party has not cured the default
within twenty (20) days (ten (10) days for non-payment by Customer) following
receipt of written notice from the non-Defaulting Party.
The difference is in the duration that the MSP is willing to allow in each
circumstance.
III. Payment
Clause 4 in Techrug Agreement and Clause 6 of Original Agreement
The Techrug Agreement provides that if payment is not received on or before any
invoice due date, interest shall begin to accrue and be payable at the lesser of the
maximum rate permitted under applicable law or at the rate of one and one-half
percent (1.5%) (or any other interest rate in accordance with the state’s law) per
month from the date due until paid in full.
The original agreement provides that fees that remain unpaid for more than thirty
(30) days after the date on the invoice will be subject to interest on the unpaid
amount(s) until and including the date payment is received, at the lower of either
1.5% per month or the maximum allowable rate of interest permitted by
applicable law.
The difference is that the original agreement provides for a longer grace period
while the Techrug agreement subjects late payment to interest immediately.
IV. Working Environment
Clause 7 of the Techrug Agreement
This clause requires that the client shall provide a suitable working environment
for any Equipment located at Client’s facility and shall bear the risk of loss of any
equipment located at the client’s facility.
There is no express provision in the original agreement to this regard.
V. Service Provider’s Employee’s, Agents or Subcontractors.
Clause 8 of the Techrug Agreement
This clause protects the MSP from having their employees poached by the client. In
the event of such an occurrence the client shall pay to Service Provider as liquidated
damages, an amount equal to One Hundred Fifty Thousand Dollars ($150,000.00).
The original agreement does not have this protective clause.
VI. Client Data Ownership and Responsibility
Clause 10 of Techrug Agreement
This clause provides that client shall have sole responsibility for the accuracy, quality,
integrity, legality, reliability, appropriateness, and intellectual property ownership or
right to use of any data, information or material proprietary submitted by Client to
MSP.
The original agreement lacks this clause.
VII. Intellectual Property
Clause 11 of the Techrug Agreement
This clause provides that MSP retains all intellectual property and the client acquires
none in its use of the services. The original agreement lacks this provision.
VIII. Service Assumption Liability Limitation
Clause 21 of the Techrug Agreement
This clause is only drafted into the Techrug Agreement and lacks in the original
agreement.
IX. Provider Insurance
Clause 22 of the Techrug Agreement
This clause is unique to the Techrug agreement. There is no provision in the original
to this regard.
X. Client Insurance
Clause 23 of the Techrug Agreement
This clause has sub-clauses which require that the client takes out Commercial
Property Insurance, Cyber Insurance and also requires that there be Mutual Waiver of
Subrogation.
The original agreement does not contain such requirements.
XI. Severability
Clause 25 of the Techrug Agreement
Although this is a standard clause in most agreements, the same is not contained in
the original agreement.
XII. Arbitration
Clause 9 of Original Agreement
Whereas the original agreement provides for dispute resolution by way of arbitration,
the Techrug agreement does not provide for a specific mode of dispute resolution.
XIII. Counterpart and Electronic Signatures
Clause 33 of the Techrug Agreement
Although this is also a standard clause in most agreement, it lacks in the original
agreement and is only included in the Techrug Agreement.
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