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Cybersecurity and Compliance Services for Central Texas Businesses
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This Master Service Agreement v3.1 (hereinafter referred to as “MSA” or “Agreement”) is entered into and is made effective as of the effective date in the signed supporting documents between the Signatory (“Client” or “Company”), and Capstone Works, Inc. (“Capstone” or “Consultant”) a Texas Corporation with a primary address of 715 Discovery Blvd., Suite 511, Cedar Park, TX 78613, (collectively referred to as the "Parties,” “Both Parties,” or “Each Party”).

RECITALS

Capstone is in the business of providing technical support and managed information technology services. Client wishes for Capstone to provide Client such services under this Agreement.

Accordingly, the Parties agree as follows:

AGREEMENT

1. GENERAL

1.1. Term and Termination. This Agreement shall commence on the Effective Date set forth above and share remain in effect for an initial period of thirty-six (36) months and will automatically renew for successive one-year periods unless and until it is terminated by either Party by providing the other Party with 30 days’ notice in accordance with the notice provisions of this Agreement.

1.2. Master Agreement, Addendums, and SOWs. This is master Agreement governs all services that Capstone performs or provides to Client (collectively, the “Services”). The scope, terms, and fees charged for the services will be described in each Services addendum, proposal, quote, or statement of work Capstone provides to Client (each, a “Statement of Work” or “SOW”). A SOW may be accepted electronically or by physically signing it and, once Client and Capstone mutually agree to a SOW, the SOW will automatically become a part of, and governed under, the terms of this Agreement.

1.3. Conflicts. If there is a material difference between the language in a SOW and the language in this Agreement, then the language of the SOW will control, except in situations involving warranties, limitations of liability, or termination of this master agreement. Under those limited circumstances, the terms of this Agreement will control unless the SOW expressly states that it is overriding the conflicting provisions of this Agreement.

1.4. Minimum Requirements. At all times, all software on the System must be genuine and licensed, and Client agrees to provide Capstone with proof of such licensing upon Capstone’s request. If we require Client to implement certain minimum hardware or software requirements in a SOW (“Minimum Requirements”), Client agrees to do so as an ongoing requirement of Capstone providing Services to Client. If patches and other software-related maintenance updates (“Updates”) are provided under a SOW, Capstone will install the Updates only if we have determined, in our reasonable discretion, that the Updates will be compatible with the configuration of the System and materially beneficial to the features or functionality of the affected software or hardware. Capstone will not be responsible for any downtime or losses arising from or related to the installation or use of any Update, provided that the Update was installed in accordance with the manufacturer’s or applicable vendor’s instructions.

2. SERVICES AND SERVICE ORDERS

2.1. Scope of Services. Beginning on the date agreed upon in the Transactional Services Agreement, Capstone agrees to undertake and provide the Services described in any SOWs and service orders thereunder (the “Service Orders”).

2.2. Service Requests. Client may request service by sending an email to [email protected], by phoning in the request to Capstone at 512-220-0208, texting to 512-877-4888, or by using the Capstone Works agent icon in the computers task tray. Capstone agrees to keep an accurate list of service requests time spent and provide reports for Client review upon request.

2.3. Change Orders. Client may request service change orders by sending an email to [email protected], or [email protected]. When placing an order for a specific change of service, Company acknowledges that it is solely responsible for the accuracy of all information provided to consultant. Each Service Order shall be subject to and shall incorporate by reference the provisions of this Agreement, and shall clearly set forth the type of Services to be provided; the term; pricing; location(s); any monthly recurring charges (“MRC”); non-recurring charges (“NRC”); additional software, equipment and other costs or expenses payable by the Client; and any additional specific terms applicable to the performance of the Services. All Service Orders shall be subject to availability and acceptance by Consultant. A Service Order will be deemed accepted by Consultant once the Service has been scheduled with or delivered to Client.

2.4. Service Order Term. The term of each Service Order will commence on the service activation date for each new service, as specified by Consultant when accepting the Service Order (“Service Activation Date”), and shall continue for the period of time specified in that Service Order or until the Service Order has been renewed or terminated as specified herein. If the Service Order is for an ongoing or recurring Service and, upon expiry of the initial term the Service Order has not been renewed, the Service Order shall automatically renew for one (1) year periods (collectively, the “Service Term”) until Services are terminated by either Party at least 30 days’ written notice prior to the end of the Service Term. Client shall continue to be responsible for payment to Consultant for the Services to be terminated through the end of the notice period. Following the initial Service Term stated in any Service Order, Consultant reserves the right to increase rates for any Services provided thereunder upon at least 30 days’ written notice.

2.5. Service Termination. Unless otherwise specified in the Service Order, if the Client terminates a Service Order without good cause, or if Consultant terminates a Service Order or Service with cause after the Service Activation Date but prior to the expiration of the Service Term, the Client shall pay Consultant an amount equal to the MRC for the Service(s) for the balance of the Service Term, plus any additional NRC or other Charges incurred by Consultant pursuant to the Service Order including any and all software, equipment, subscription, installation and special construction costs, and any and all other costs and fees incurred by Consultant in connection with providing the Service.

Client acknowledges that the actual damages likely to result from an early termination are difficult to estimate on the Effective Date. Therefore, if Client cancels a Service or Service Order before the Service Activation Date, it will pay a cancellation fee equal to any and all costs and fees incurred by Consultant, whether previously waived or not, and any third-party charges incurred by Consultant with respect to such cancelled Service.

2.6. Assignment and Outside Contractors. Consultant may, with the prior consent of the Client, engage such persons, corporations or other entities as it reasonably deems necessary for the purpose of performing Services under this Agreement; provided, however, that Consultant shall remain responsible for the performance of all such Services and shall be considered to engage with any third-party persons, corporations or other entities on its own behalf.

2.7. Exclusions. While Consultant will always make the best possible efforts to provide support and troubleshoot issues as requested, this Agreement only applies to the systems and services listed in the Service Schedule and applicable Service Orders. In addition, this Agreement does not cover a) issues caused by using equipment, software or service(s) in a way that is not recommended; b) issues resulting from unauthorized changes made by Company to the configuration or setup of equipment, software or Services; c) issues caused by Company’s actions that have prevented or hindered Consultant in performing required and recommended maintenance upgrades; d) issues resulting from work performed by Client or any of its contractors other than Consultant on the systems, software and equipment that falls under this Agreement.

2.8. Client Responsibilities. Client will use the business technology systems., covered under this Agreement or any Service Schedule or Service Orders as intended. Additionally, Client will a) notify Consultant of any issues or problems with said business technology systems, etc., in a timely manner; b) provide Consultant with access to the business technology systems for the purposes of maintenance, updates and fault prevention; c) keep Consultant informed about potential changes to its IT system; and d) maintain good communication with Consultant at all times.

3. BILLING AND PAYMENTS

3.1. Charges and Billing. Company shall pay all monthly recurring charges (“MRC”) in advance and all other Charges monthly in arrears. All Charges shall be payable in U.S. Dollars, no later than thirty (30) days from the invoice date (“Due Date”) and shall be exclusive of any applicable taxes.

“Charges” means the fees, rates and charges for the Services, as specified in the applicable Service Order or as otherwise invoiced by Consultant pursuant to the Agreement. Unless otherwise agreed to by the Parties in writing, Charges for each Service Order shall begin to accrue on the date the Service is provisioned by Consultant. Charges for the Services are subject to change at any time if third party charges in connection with a Service are increased or newly charged to Consultant. The method of payment to Capstone shall be by:

a) check sent to the following address:

715 Discovery Blvd., Suite 511, Cedar Park, TX 78613

a) wire transfer to the following account:

Wells Fargo Bank Account 571-255-0531 Bank Code 111-900-659

3.2. Late Payments. If Client is late in making payment, it shall pay a late fee on any late payments at the higher of one and a half percent (1.5%) per month or the maximum rate allowed by applicable law. If Consultant uses a collection agency or attorney to collect a late payment or returned payment, Company agrees to pay all reasonable costs of collection or other action. These remedies are in addition to and not in limitation of any other rights and remedies available to Consultant under the Agreement, at law or in equity.

3.3. Taxes and Other Fees. All Charges for the Services are exclusive of any taxes and other fees and surcharges. Company shall be responsible for payment of all applicable taxes that arise in any jurisdiction, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, and bypass (“Taxes”).

3.4. Invoice Disputes. To the extent that Company disputes any portion of an invoice in good faith, it shall notify Consultant in writing and provide detailed documentation supporting its dispute within 30 days of the invoice date or the Company’s right to any billing adjustment shall be waived. In the event of a billing dispute, Company shall timely pay all undisputed amounts. If the dispute is resolved against Company, Company shall pay such amounts due plus interest from the original Due Date. Company may not offset disputed amounts from one invoice against payments due on the same or another account.

3.5. Changes and Fee Estimates. Fees shall be subject to change by Consultant upon no less than 10 days’ written notice to Client. Any fee estimates provided by Consultant at Company’s request are for informational purposes only and may differ from the rate(s) ultimately payable by Company pursuant to a subsequent invoice, Service Order or Service Schedule.

3.6. Refunds and Cancellations. The fees charged under this Agreement are non-refundable. No refunds will be given after Consultant has commenced work pursuant to this Agreement or any Service Order or Service Schedule. Partial refunds requested prior to commencement of Consultant’s work may be given at Consultant’s discretion, subject to an administrative and cancellation fee of 5% of the fees already paid, or up to $350 whichever is greater.

4. LIMITED WARRANTY

4.1. Limited Warranty. Consultant warrants, for a period of thirty (30) days following delivery of any services hereunder (the “Warranty Period”) that all Services will be performed in a professional manner and in accordance with generally applicable industry standards. Consultant’s sole liability (and Client’s exclusive remedy) for any breach of this Warranty shall be for Consultant to re-perform any deficient services, or, if Consultant is unable to remedy such deficiency within fifteen (15) days, to void the invoice for the deficient services. Consultant shall have no obligation with respect to any Warranty claim if (1) it is notified of such claim after the Warranty Period or (2) the claim is the result of third-party hardware of software, the actions of Client, or the actions or omissions of some other party or is otherwise caused by factors outside the reasonable control of Consultant.

THIS SECTION IS A LIMITED WARRANTY AND SETS FORTH THE ONLY WARRANTIES MADE BY CONSULTANT. CONSULTANT MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER WRITTEN OR ORAL, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, WITH RESPECT TO ANY GOODS AND/OR SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF RELIABILITY, USEFULNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM THE COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE, OR ANY WARRANTIES REGARDING THE PERFORMANCE OF ANY SOFTWARE OR HARDWARE PROVIDED OR INSTALLED BY CONSULTANT. COMPANY MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE WARRANTY PERIOD.

Consultant will pass along to the Company any third-party warranties relating to any goods purchased and/or installed by Consultant on Client’s premises and/or equipment

5. LIMITATION OF LIABILITY

5.1. Aggregate Limit of Liability. COMPANY UNDERSTANDS AND AGREES THAT CONSULTANT SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR INTERRUPTION OF SERVICES, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OR INCREASED EXPENSE OF USE CLIENT OR ANY THIRD PARTY INCURS), WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR STRICT LIABILITY, EVEN IF CONSULTANT HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH LIABILITIES. CONSULTANT SHALL NOT BE RESPONSIBLE FOR ANY PROBLEMS WHICH MAY OCCUR AS A RESULT OF THE USE OF ANY THIRD-PARTY SOFTWARE OR HARDWARE. IN NO EVENT SHALL THE AGGREGATE AMOUNT COMPANY MAY RECOVER FROM CONSULTANT UNDER THIS AGREEMENT FOR ANY AND ALL INJURIES, CLAIMS, LOSSES, EXPENSES OR DAMAGES, ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES AND/OR THIS AGREEMENT, FROM ANY CAUSE OR CAUSES, INCLUDING BUT NOT LIMITED TO CONSULTANT’S NEGLIGENCE, ERRORS, OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY (“COMPANY’S CLAIMS”) EXCEED THE TOTAL PAYMENTS MADE TO CONSULTANT BY CLIENT PURSUANT TO THIS AGREEMENT IN THE IMMEDIATELY PRECEDING THREE (3) MONTHS THE FOREGOING SUM REPRESENTS CONSULTANT’S TOTAL LIABILITY FOR ALL OF COMPANY’S CLAIMS. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF CONSULTANT.

6. INSURANCE

6.1. Insurance. Each party agrees to maintain, and Consultant shall cause its subcontractors to maintain, through a reputable carrier licensed to do business in the State of Texas, the following minimum insurance: (1) general commercial liability insurance with a limit of no less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate; and (2) workers’ compensation and unemployment insurance coverages as required by any state and federal laws to which each Party is subject. All of the insurance policies described herein will not be canceled, materially changed or renewal refused until at least thirty (30) calendar days written notice has been given to the other party. The parties agree to provide satisfactory proof of insurance upon execution of this Agreement.

6.2. CyberLiability Insurance. Consultant agrees to purchase and maintain throughout the term of this Agreement a technology/professional liability insurance policy, including coverage for network security/data protection liability insurance (also called “cyber liability”) covering liabilities for financial loss resulting or arising from acts, errors, or omissions, in rendering technology/professional services or in connection with the specific services described in this Agreement, including the following:

  • Violation or infringement of any right of privacy, including breach of security and breach of security/privacy laws, rules or regulations globally, now or hereinafter constituted or amended.
  • Data theft, damage, unauthorized disclosure, destruction, or corruption, including without limitation, unauthorized access, unauthorized use, identity theft, theft of personally identifiable information or confidential corporate information in whatever form, transmission of a computer virus or other type of malicious code; and participation in a denial-of-service attack on third party computer systems.
  • Loss or denial of service; and other coverages reasonably necessary in connection with the type of Services being provided hereunder.

The policy shall have no cyber terrorism exclusion; and shall come with a minimum limit of $1,000,000 each and every claim and in the aggregate. Such coverage must include technology/professional liability including breach of contract, privacy and security liability, privacy regulatory defense and payment of civil fines, payment of credit card provider penalties, and breach response costs (including without limitation, notification costs, forensics, credit protection services, call center services, identity theft protection services, and crisis management/public relations services).

Such insurance must explicitly address all of the foregoing without limitation if caused by a member, officer, director, shareholder, partner or employee of Consultant or an independent contractor working on behalf of Consultant in performing services under this Agreement. The policy must further provide coverage for wrongful acts, claims, and lawsuits anywhere in the world. Such insurance must also include affirmative contractual liability coverage for the data breach indemnity in this Agreement for all damages, defense costs, privacy regulatory civil fines and penalties, and reasonable and necessary data breach notification, forensics, credit protection services, public relations/crisis management, and other data breach mitigation services resulting from a breach of confidentiality or breach of security by or on behalf of Consultant.

7. INDEMNITY

7.1 Release and Indemnification. Each Party agrees to release, indemnify, defend and hold harmless (“Indemnifying Party”) the other Party, its directors, officers, employees, and agents, successors and assigns (“Indemnified Party”), from and against all claims, losses, expenses, fees, damages and liabilities, including reasonable attorney fees and disbursements, costs, and judgments, sustained in any action commenced by any third party in connection with the Indemnifying Party’s performance of, or failure to perform, its obligations and duties under this Agreement, except for those damages, costs, expenses and liabilities arising from the negligence or willful misconduct of the Indemnified Party; provided, however, that Consultant is not obligated to indemnify Company, and Company shall defend and indemnify Consultant hereunder, for any claims by any third party, including any clients and/or customers of Company, arising from services provided by Company that incorporate any of the Services being provided by Consultant hereunder, including but not limited to (a) the violation of any applicable law by the Company or the Company’s clients and/or customers; (b) damage to property or personal injury (including death) arising out of the acts or omissions of Company’s clients and/or customers; (c) termination or suspension of Services of Company or Company’s clients and/or customers due to a Company Default; or (d) claims by any third party, including without limitation Company’s clients and/or customers, arising out of or related to the use or misuse of any Service. In all claims for Indemnity under this paragraph, the Indemnifying Party’s obligation shall be calculated on a comparative basis of fault and responsibility. Neither party shall be obligated to indemnify the other in any manner whatsoever for claims, losses, expenses, or damages resulting from the other party’s own negligence.

7.2 Indemnification Procedures. The Indemnified Party shall promptly notify the Indemnifying Party in writing of any such suit or claim, and shall take such action as may be necessary to avoid default or other adverse consequences in connection with such claim. The Indemnifying Party shall have the right to select counsel and to control the defense and settlement of such claim; provided, however, that the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in handling the claim, and provided further, that the Indemnifying Party shall not take any action in defense or settlement of the claim that would negatively impact the Indemnified Party. The Indemnified Party shall provide cooperation and participation of its personnel as required for the defense at the cost and expense of the Indemnifying Party.

8. CONFIDENTIALITY AND DATA PROTECTION

8.1. Confidentiality. Each Party acknowledges that, in connection with this Agreement, it may be furnished with, or given access to, certain confidential and/or proprietary information of the other Party, and that, subject to the provisions of his section, such information shall not be disclosed by the Party receiving the information to any third party, and shall not be used by either Party for purposes other than those contemplated by this Agreement.

8.2. Information Subject to Confidentiality. Confidential Information may include, but is not limited to, the following:

  • Any materials regardless of form furnished by either Party to the other for use.
  • Any information furnished by any Party that is stamped “confidential,” “proprietary,” or with a similar legend, or any information that any Party makes similar reasonable efforts to maintain secret.
  • Any business or marketing plans, strategies, customer lists, operating procedures, design formulas, know-how, processes, programs, software, inventories, discoveries, improvements of any kind, sales projections, strategies, pricing information; and other confidential trade secrets, data and knowledge of either Party.
  • Any information belonging to employees, agents, members, shareholders, owners, customers, suppliers, vendors, contractors, business partners and affiliates of either Party.
  • Any non-public inventions the rights to which have not been assigned to the Party receiving the information.
  • Any non-public and proprietary technical information belonging to either Party, the rights to which have not been assigned to the party receiving the information;

and other proprietary information owned by either Party, (collectively “Confidential Information”), which are valuable, special and/or unique assets of that Party.

Any templates, schematics, processes or technical documentation provided by Consultant shall be deemed Confidential Information and proprietary information of Consultant without any marking or further designation. Company may use such information solely for its own internal business purposes. Consultant shall maintain the confidentiality of information in its possession regarding individual protected health information in accordance with applicable law, and shall not release such information, to any other person or entity, except as required by law.

8.3 Non-Disclosure. Neither Company nor Consultant will disclose or use, either during or after the term of this Agreement, in any manner, directly or indirectly, any such Confidential Information of the other Party, for their own benefit or the benefit of any third party. Neither Party will use, share, divulge, disclose or communicate in any manner whatsoever any Confidential Information to any third party without the prior written consent of the other Party, except to the extent specifically permitted under this Agreement.

Both Parties will protect all Confidential Information of the other, and will treat it as strictly confidential, unless and until: a) said information becomes known to third parties not under any obligation of confidentiality to the party whose confidential information is at issue (“Disclosing Party”), or becomes publicly known through no fault of the other party (the “Receiving Party”); or b) said information was already in the Receiving Party’s possession prior to its disclosure, except in cases where the information has been covered by a preexisting Confidentiality Agreement; or c) said information is subsequently disclosed by a third party not under any obligation of confidentiality to the Disclosing Party; or d) said information is approved for disclosure by prior written consent of the Disclosing Party; or e) said information is required to be disclosed by court order or governmental law or regulation, provided that the Receiving Party gives the Disclosing Party prompt notice of any such requirement and cooperates with the Disclosing Party in attempting to limit such disclosure; or f) said information is proven independently developed by the Receiving Party without recourse or access to the information; or g) disclosure is required in order for a party to comply with its obligations under this Agreement, provided that prior to disclosure, the Receiving Party gives the Disclosing Party prompt notice of any such requirement and cooperates with the Disclosing Party in attempting to limit such disclosure.

A violation of this paragraph shall be a material violation of this Agreement.

8.4 Employees and Agents. The Parties further agree to disclose the Confidential Information to their officers, directors, employees, contractors and agents (collectively, the "Agents") solely on a need-to-know basis and represent that such Agents have signed appropriate non-disclosure agreements and/or that the Party receiving Confidential Information has taken appropriate measures imposing on such Agents a duty to (1) hold any Confidential Information received by such Agents in the strictest confidence, (2) not to disclose such Confidential Information to any third party, and (3) not to use such Confidential Information for the benefit of anyone other than the party to whom it belongs, without the prior express written authorization of the party disclosing same.

8.5 Unauthorized Disclosure of Confidential Information. If either party to this Agreement discloses or threatens to disclose the other party’s Confidential Information to another party or to the Disclosing Party’s detriment or damage, in violation of this Agreement, the party whose information is at issue will suffer irreparable damage and shall be entitled to an award by any court of competent jurisdiction of a temporary restraining order and/or preliminary injunction to restrain the other party from such unauthorized use or disclosure, in whole or in part, of such Confidential Information, without the need to post a bond, and/or from providing services to any party to whom such information has been disclosed or may be disclosed.

The infringing party further agrees to reimburse the Disclosing Party for any loss or expense incurred as a result of the infringement, including but not limited to court costs and reasonable attorney fees incurred by the Disclosing Party in enforcing the provisions of this Agreement, in addition to any other damages which may be proven.

The parties shall not be prohibited by this provision from pursuing other remedies, including a claim for losses and damages.

8.6 Data Protection. The Parties acknowledge that Consultant may have access to certain of Company’s computer and communications systems and networks for the purposes set forth in this Agreement. If any data is made available or accessible to Consultant, its employees, agents or contractors, pertaining to Company’s business or financial affairs, or to Company’s projects, transactions, clients, customers, partners, vendors or any other person or entity, Consultant will not store, copy, analyze, monitor or otherwise use that data except for the purposes set forth in this Agreement and any valid Service Schedule or Service Order. Consultant will comply fully with all applicable laws, regulations, and government orders relating to personally identifiable information (“PII”) and data privacy with respect to any such data that Consultant receives or has access to under this Agreement or in connection with the performance of any Services for Company. Consultant will otherwise protect PII and will not use, disclose, or transfer such PII except as necessary to perform under this Agreement or as specifically authorized by the data subject or in accordance with applicable law. To the extent that Consultant receives PII related to the performance of this Agreement, Consultant will protect the privacy and legal rights of Company’s personnel, clients, customers and contractors.

9.0 DEFAULT

9.1 Default by Company. Company is in default of this Agreement if it (a) fails to cure any monetary breach within ten (10) days of receiving notice of the breach from Consultant; (b) fails to cure any non-monetary breach of any terms of the agreement within thirty (30) days of receiving notice of the breach from Consultant; or (c) files or initiates proceedings or has proceedings filed or initiated against it, seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or other similar law (each such event shall be a “Company Default”).

In the event of a Company Default, Consultant may suspend Services to Company until Company remedies the Company Default, or Consultant may terminate this Agreement and/or any or all of the Services being provided hereunder. Consultant may at its sole option, but without any obligation, cure a non-monetary breach at Company’s expense at any point and invoice Company for the same. These remedies are in addition to and not a substitute for all other remedies contained in this Agreement or available to Consultant at law or in equity.

9.2 Default by Consultant. Consultant is in default of this Agreement if it fails to cure any non-monetary breach of any material term of this Agreement within thirty (30) days of receiving written notice of the breach from Company (“Consultant Default”); provided, however, that Company expressly acknowledges that Service-related failure or degradation in performance does not give rise to a claim of a Consultant Default. Company’s sole and exclusive remedy for any failure of Service is limited to the remedies set forth in under the Limited Warranty and Limitation of Liability sections of this Agreement. In the event of a Consultant Default, Company may terminate the Services and this Agreement upon written notice to Consultant. Any termination shall not relieve Company of its obligations to pay all charges incurred hereunder prior to such termination.

10.0 TITLE.

10.1 Title to Goods. From time to time, Capstone will sell and or deliver Capstone owned hardware, and commercial software licenses (“Goods”) to the Client, which are to be supplied in delivery of service to the Client or as ordered separately by the Client under this agreement. Capstone shall retain full ownership of and title to all Goods delivered to the Client or any part thereof unless and until the Client has paid all sums owing to Capstone for such Goods. Goods owned by Capstone must be returned at the termination of this agreement. Capstone transfers no title to or ownership in Goods comprising hardware or software to the Client or any third party until paid in full.

10.2 Bailment. While any amount remains outstanding to Capstone from the Client.

a) the Client shall keep the Goods as fiduciary bailee for Capstone and shall store the Goods in a manner that clearly shows that Capstone owns them.

b) the Client shall not pledge or in any way charge by way of security for any indebtedness any of the Goods that remain the property of Capstone.

c) the Client will deliver up or have delivered up to Capstone Goods upon demand and Capstone may without limiting any other rights or remedies available to it at law in equity or by statute seize repossess and/or resell Goods at its discretion and in the exercise of such rights Capstone may enter any premises in which it reasonably believes any Goods are located.

d) the Client may only sell transfer or otherwise dispose of the Goods to its Clients in the ordinary course of its business and in accordance with the provisions of these Conditions.

e) where the Client is paid by or on behalf of any Client or shall receive the proceeds of any insurance claim in respect of any Goods it shall pay such proceeds to Capstone as soon as reasonably practicable to do so after receipt until Capstone is paid in full and shall hold the same as trustee for Capstone

f) the Client shall take all due care (or ensure that all due care is taken) of the Goods and the Client shall bear the sole liability and shall indemnify Capstone for any loss whatsoever suffered or incurred by Capstone arising out of loss or destruction loss of such Goods.

10.3 Intellectual Property Rights. Capstone grants to Client a non-exclusive, irrevocable, royalty free license to use, copy, and modify any elements of the Material not specifically created for Client as part of the Services. In respect of the Material specifically created for Client as part of the Services, Capstone assigns the full title guarantee to Client and any and all of the copyright, other intellectual property rights and any other data or material used or subsisting in the Material whether finished or unfinished. If any third-party intellectual property rights are used in the Material Capstone shall ensure that it has secured all necessary consents and approvals to use such third-party intellectual property rights for Capstone and Client . For the purposes of this Section, "Material" shall mean the materials, in whatever form, used by Capstone to provide the Services and the products, systems, programs or processes, in whatever form, produced by Capstone pursuant to this Agreement.

11 RELATIONSHIP OF THE PARTIES.

11.1 Independent Contractor. The Parties acknowledge and agree that the Services performed by Capstone, its employees, agents or sub-contractors shall be as an independent contractor and that nothing in this Agreement shall be deemed to constitute a partnership, joint venture, agency relationship or otherwise between the parties.

11.2 Reservation. Capstone reserves the right to determine the method, manner, and means by which the Services under this Agreement and any attachments hereto will be performed unless otherwise specified in writing. Unless otherwise specified in writing, Capstone is not required to perform any services under this Agreement or any attachments hereto during a fixed hourly or daily time.

11.3 Not Full Time. Capstone shall not be required to devote its full time to the performance of the Services required under this Agreement, and it is acknowledged that Capstone has other clients and offers services to the general public. The order or sequence in which the work is to be performed shall be under the control of Capstone unless otherwise specified in writing.

12 Non-Solicitation of Employees. During the term of this Agreement and for a period of twelve (12) months thereafter, Client agrees not to solicit, recruit, or employ any Capstone employee or consultant without the prior, express, written consent of a Corporate Officer of Capstone. Capstone hereby agrees that it will not solicit, hire, or retain, in any capacity whatsoever any of Client’s employees during the term of this agreement and for a period of twelve (12) months thereafter without written consent from the Client.

13 MISCELLANEOUS

13.1 Notices. All notices and other communications required or permitted under this Agreement shall be in writing, and shall be deemed delivered when personally delivered, sent by e-mail, or forty-eight hours after being deposited in the United States mail as certified or registered U.S. mail with postage prepaid, addressed to the address of the Party to be noticed as set forth on the signature page of this Agreement, or to such other address or e-mail address as such party last provided to the other by written notice conforming to the requirements of this paragraph.

13.2 Entire Agreement. This Agreement, together with all attachments, schedules, exhibits and other documents that are incorporated by reference herein, constitute the entire agreement between the Parties, represent the final expression of the Parties’ intent and agreement relating to the subject matter hereof, contain all the terms and conditions that the Parties agreed to relating to the subject matter, and replaces and supersedes all prior discussions, understandings, agreements, negotiations, e-mail exchanges, and any and all prior written agreements between the Parties. Any subsequent changes to the terms of this Agreement may be amended or waived only with the written consent of both Parties and shall be effective upon being signed by both Parties.

13.3 Severability. If any provision of this Agreement is declared by any court of competent jurisdiction to be illegal, void, unenforceable or invalid for any reason under applicable law, the remaining parts of this Agreement shall remain in full force and effect and shall continue to be valid and enforceable. If a court finds that an unenforceable portion of this Agreement may be made enforceable by limiting such provision, then such provision shall be deemed written, construed and enforced as so limited.

13.4 Successors and Assigns. Company shall not transfer or assign, voluntarily or by operation of law, including but not limited to a change of control wherein more than 50% of Client’s ownership or assets is transferred to a party that did not have 50% or more ownership interest in Client immediately prior to the transaction, its obligations under this Agreement without the prior written consent of Consultant. This Agreement may be assigned by Consultant (i) pursuant to a merger or change of control of Consultant, or (ii) to an assignee of all or substantially all of Consultant’s assets. Any purported assignment in violation of this section shall be void.

13.5 Survival. All provisions that logically ought to survive termination of this Agreement, including but not limited to applicable Warranties, Limitation of Liability, Indemnity, Choice of Law, Forum Selection, and Confidentiality provisions, shall survive the expiration or termination of this Agreement.

13.6 No Waiver. The failure of any Party to insist upon strict compliance with any of the terms, covenants, duties, agreements or conditions set forth in this Agreement, or to exercise any right or remedy arising from a breach thereof, shall not be deemed to constitute waiver of any such terms, covenants, duties, agreements or conditions, or any breach thereof.

13.7 Force Majeure. Either Party who fails to timely perform their obligations under this Agreement (“Nonperforming Party”) shall be excused from any delay or failure of performance required hereunder if caused by reason of a Force Majeure Event as defined herein, as long as the Nonperforming Party complies with its obligations as set forth below.

For purposes of this Agreement, “Force Majeure Event” means any event, circumstance, occurrence or contingency, regardless of whether it was foreseeable, which is a) not caused by, and is not within the reasonable control of, the nonperforming Party, and b) prevents the Nonperforming Party from its obligations under this Agreement. Such events may include but are not limited to acts of war; insurrections; fire; laws, proclamations, edicts, ordinances or regulations; strikes, lockouts or other labor disputes; riots; explosions; and hurricanes, earthquakes, floods, and other acts of nature.

The obligations and rights of the Nonperforming Party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the Parties’ respective obligations under this Agreement shall resume. In the event that the interruption of the Nonperforming Party’s obligations continues for a period in excess of thirty (30) days, either Party shall have the right to terminate this agreement upon ten (10) days’ prior written notice to the other Party.

Upon occurrence of a Force Majeure Event, the Nonperforming Party shall do all of the following: a) immediately make all reasonable efforts to comply with its obligations under this Agreement; b) promptly notify the other Party of the Force Majeure Event; c) advise the other Party of the effect on its performance; d) advise the other Party of the estimated duration of the delay; e) provide the other Party with reasonable updates; and f) use reasonable efforts to limit damages to the other Party and to resume its performance under this Agreement.

13.8 Mediation and Arbitration. If a dispute arises under this Agreement, the Parties hereby agree to first attempt to resolve said dispute by submitting the matter to a mutually agreed-upon mediator in the State of Texas. The Parties agree to share any mediation costs and fees, other than their respective attorney fees, equally.

If the dispute is not resolved through mediation, the Parties agree to submit the dispute to binding arbitration in accordance with the rules of the American Arbitration Association, and each Party hereby consents to any such disputes being so resolved. Judgment on the award so rendered in any such arbitration may be entered in any court having jurisdiction thereof.

13.9 Choice of Law. This Agreement shall be governed and construed in accordance with the laws of the State of Texas, excluding that State’s choice-of-law principles, and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of Texas, excluding that State’s choice-of-law principles.

13.10 Choice of Forum. The Parties hereby agree that all demands, claims, actions, causes of action, suits, proceedings, including any arbitration, mediation and/or litigation between the parties, to the extent permitted under this Agreement and arising out of same, shall be filed, initiated, and conducted in the State of Texas. Unless the provisions of this Agreement exclude litigation as a remedy in a dispute by the Parties, it is hereby agreed that any litigation arising out of this Agreement must be filed and litigated in a state or federal court located in the State of Texas. In connection with the foregoing, to the extent that litigation is a permissible method of dispute resolution under this Agreement, each Party hereby consents and submits to the exclusive jurisdiction of those courts for purposes of any such proceeding and waive any claims or defenses of lack of jurisdiction of, or proper venue by, such court.

13.11 Attorney Fees. In the event that any arbitration, suit or action is instituted to resolve a dispute pertaining to matters covered under this Agreement, or enforce any provision thereof, the prevailing Party in any such dispute or proceeding shall be entitled to recover from the losing Party all fees, costs and expenses of enforcing any right of such prevailing Party under or with respect to this Agreement, including without limitation, all reasonable fees and expenses of attorneys and accountants, court costs, and expenses of any appeals.

13.12 Headings Not Controlling. Headings used in this Agreement are for reference purposes only and shall not be used to modify the meaning of the terms and conditions of this Agreement.

13.13 Counterparts. The Parties agree that this Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall be deemed one and the same Agreement. The Parties further agree that e-signatures carry the same weight and effect as traditional paper documents and handwritten signatures; therefore, this Agreement may be electronically signed via any e-signature service compliant with the Electronic Signatures in Global and National Commerce (ESIGN) Act and the Uniform Electronic Transactions Act (UETA) as of the Effective Date of this Agreement.

Our Managed Network Care service addresses your business pain with enterprise-level solutions designed for small and medium organizational needs; eliminating downtime, managing vendors, and keeping your mission-critical business technologies running smoothly at a flat rate.

Proactive Managed IT

Managed Works's Network Care is the foundation of our Managed IT Services. Network Care works in concert with your existing IT Department/Service Provider, on its own, or with our other Flat-Rate IT Care Plans.

Our Network Monitoring Service promptly alerts us when there is a problem within your infrastructure. We know about the issue even before you do, and begin troubleshooting immediately.

To keep your network secure, safe, and efficient, our Managed Works platform provides antivirus protection for your network and gives our skilled service technicians remote access to resolve issues before they cost you time and money. Your network policies will be evaluated and tested to ensure internal security protocols.

Combined with our Server Care plan, our Desktop & User Care plan, and our bullet-proof Managed Works Disaster Recovery Device, your IT infrastructure will be completely managed with support that rivals that of large enterprise corporations; priced for small businesses. Contact us today to get started.

Key Features:

  • Unlimited Remote & On-Site Support from 8:30am - 5:30pm

  • 24/7/365 Emergency Support

  • Active Directory Administration & Maintenance

  • File, Folder, & Share Administration

  • Security Administration

  • Network Policy Enforcement & Administration

  • Managed Anti-Virus Protection

  • Comprehensive 360 degree view of your IT via the Managed Works Client Portal


Cybersecurity has to be integrated into the daily strategy of all businesses, taking risk management, data protection, and your compliance needs into account. A security risk assessment is essential for discovering your risks and defining appropriate mitigation strategies that fit your company’s specific needs.

When it comes to your cybersecurity risks do you:

  • Have the proper tools in place to mitigate any risk of breach?
  • Protect your assets and resources, including your data, your website, your financial data, your intellectual property, and email?
  • Meet your business sector's regulations and overcome its specific vulnerabilities?

If you answered “no” to any of these questions, you need to know how severe your risk is.

You Need to Know How Secure You Are!

What’s included in the Assessment Process?

The assessment process takes time to be completed as it depends on the size and the complexity of your network. The assessment process is broken down into several phases to achieve the goal of understanding your companies vulnerabilities to risk, identifying areas to improve upon and to provide best practices to your security controls within your infrastructure.

  1. Identification
    We will use our security scanning and other tools to identify external and external vulnerabilities.
  2. Analyze
    We’ll look for holes in your security, detection and prevention policies and practices that could lead to a breach.
  3. Report
    We will provide and review with you a summary of all our findings and recommendations that you can use whether you work with us in the future or not.

Cybersecurity is not one and done.

Protecting your business is an ongoing process. With the ever-evolving threats cybercriminals pose it is important to maintain a risk management program to continuously monitor your IT environment for new threats.

Ready to schedule an assessment? Fill out the form and we’ll contact you!

We Commit to Guarding Your Business from Modern Cyberthreats

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Risk Assessment

Let’s fully audit your network and help you establish a cybersecurity roadmap to secure your business from cyberthreats.

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Managed Protection

We actively monitor all endpoints across your network, and ensure that security updates and software is kept updated.

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Staff Training

We can host periodical on-site or virtual staff training events to keep your employees educated on compliance and threat prevention.

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Security Compliance

We will help your business meet specific security compliance standards, such as HIPAA, PCI DSS, SOX, and more.

Cybersecurity Needs to be Taken Seriously

Many small business owners assume that, due to their company’s size, they aren’t at risk of being targeted by cybercriminals.

A recent report stated that 43 percent of online attacks targeted small businesses.

Small and medium-sized businesses throughout central Texas are not exempt from data breaches and other high-profile attacks. In fact, smaller businesses are now being targeted more because they are easier to get into while still offering a good payoff for hackers.

Security Compliance

We’ve worked with a wide variety of businesses in many industries, including healthcare, contract manufacturing, accountants/CPAs, retail, engineering firms, legal firms, and many more. We’ll assist your business with meeting regulatory compliances such as HIPAA, PCI DSS, SOX, and more. 

Now is the time to take control over your IT while reducing the risk of data breaches and other cyberattacks.

24/7 Managed Security

We monitor network traffic and endpoint logs to detect and isolate threats before they spread and threaten your data.

Content Filtering

We implement customizable filters to help stop users from surfing to dangerous, inappropriate, or time-wasting online content

Unified Threat Management

Our enterprise-level security appliance is your first line of defence and prevents most intrusions from making it in.

Spam Protection

Our elegant spam filtering solution reduces time-wasting and often dangerous emails by eliminating them before they find their way into your inbox.

Email Encryption

Protect your data and your customer’s privacy by offering secure, hassle-free encrypted email messaging

Staff Training

Cybercriminals are targeting your users. Through training and policy, you can better protect your staff and your data.

Mobile Device Management

Establish secure device policies for all smartphones and tablets to protect the devices your staff use daily.

Enterprise-level Security

Small businesses deserve (and require) the same level of protection that larger corporations have access to.

Compliance

We help you meet demanding industry compliances and can assist with security audits and evaluations.

Penetration Testing

Often required for certain compliance  standards, “pen testing” can identify vulnerabilities in your organization.

Latest News & Events

Capstone Works is proud to announce the launch of our new website at https://www.capstoneworks.com. The goal of the new website is to make it easier for our existing clients to submit and manage support requests, and provide more information about our ser...

Contact Us

Learn more about what Capstone Works can do for your business.

Call Us Today
Call us today
(512) 882-2242

715 Discovery Blvd
Suite 511

Cedar Park, Texas 78613