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1. These terms (“Terms”) of this Master Services Agreement apply to Client’s purchases from cloudIT, LLC (“Provider”) of software licenses, hardware, supplies, equipment, support and maintenance services, subscription services, as well as any other item or service provided by Provider to Client (collectively, “Services”). Client hereby engages and retains Provider to provide those Services as specifically set forth in a separate “Signed Quote” and “Terms of Service Agreement” (“TOS”), or any purchase or work order as agreed among the Parties (each a “Work Order” as may be entered into between Provider and Client from time to time. Except as otherwise stated therein, the Terms shall be incorporated into any subsequent TOS, Signed Quotes or Work Orders. No Services will be provided under these Terms alone but will require the execution (whether written or electronic) of a Signed Quote, a Work Order, and/or a TOS, with the Signed Quote, the Work Order, and the TOS incorporating these Terms collectively being referred to as the “Service Order”). In the event of any conflict between the Signed Quote, a TOS, or a Work Order and these Terms, the terms of the Signed Quote, the TOS or the Work Order will prevail over the Terms.
Provider reserves the right to change the Terms at any time, and any such change shall apply to any Services provided by Provider after such change, including any repeat or renewal of a Service Order. If Client does not agree to the new Terms, Client must notify Provider in writing of its objection to the new Terms, and Provider has the right to then terminate the Services. By continuing to use the Services, Client agrees to the changes in the Terms.
2. GENERAL REQUIREMENTS & CONDITIONS.
2.1 System. For the purposes of these Terms, “System” means, collectively, any computer, computer network, computer system, peripheral or device installed, maintained, supported, monitored, or operated by Provider pursuant to and as specifically identified in a Service Order. To avoid a delay or negative impact on our provision of any Services, during the term of each Service Order, Client agrees to refrain from modifying or moving the System, or installing software on the System, unless Provider expressly authorizes such activity. Provider will not be responsible for any consequences arising out of or relating to any unauthorized movement or installation taken by Client.2.2 Maintenance; Updates. If patches and other software-related or maintenance updates (“Updates”) are provided under a Service Order, Provider will install the Updates only if Provider has determined, in its 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 System. Provider will not be responsible for any downtime or losses arising from or related to the installation or use of any Updates installed by Provider, provided that the Updates were installed in accordance with the manufacturer or applicable vendor’s instructions.
2.3 Third-Party Service Providers. “Third-Party Service Providers” means Services provided by an entity or a Party other than the Provider in fulfillment of a Service Order.
Client’s right to receive the Services of the Third-Party Service Provider is subject to Client’s compliance with these Terms and the terms and conditions of the Service Order and of any Third-Party agreements, which Provider does not have authority to vary, alter or amend.
Provider may utilize a Third-Party Service Provider in its discretion to provide the Services in accordance with the Service Order. The Third-Party Service Provider may require the Provider to enter into an agreement with the Third-Party Service Provider for such Services to be provided to Client under a Service Order (“Third-Party Contract”) and the terms of the Third-Party Contract may impose conditions and requirements upon Client and its use and/or receipt of the Services. Access to the terms and conditions of any such Third-Party Contract(s) will be provided to Client or appear on Provider’s website which identifies the Third-Party Service Provider and a link to its terms and conditions or EULA (defined in Section 9.2). Client acknowledges that by submitting a Service Order, Client authorizes Provider to accept the terms and conditions of a Third-Party Contract, on behalf of Client, and that Client will be bound by all terms and conditions of each such Third-Party Contract.
2.4 Third-Party Product – “Third-Party Product” means machinery, equipment and/or products inclusive of component parts purchased from vendors in fulfillment of the TOS requirements.
Provider does not own certain Third-Party Products and Client’s right to use the Third-Party Products is subject to Client Agreement or other agreement with Provider, and to Client understanding of, compliance with and consent to the terms and conditions of the Third-Party agreements, which Provider does not have authority to vary, alter or amend.
Provider will use reasonable efforts to assign, transfer and facilitate all warranties (if any) for any Third-Party Products provided by a vendor to Client, but will have no liability whatsoever for the quality, functionality, or operability of any Third-Party Products, and Provider will not be held liable as an insurer or guarantor of the performance (including, but not limited to any downtime arising out of or related to such Third-Party Products) or usefulness of any Third-Party Products.
2.5 Third-Party Support. If, in Provider’s discretion, any Service under a Service Order requires vendor or OEM support, Provider may contact the vendor or OEM (as applicable) on Client’s behalf and pass through to Client all fees and costs incurred in that process. If such fees or costs are reasonably anticipated in advance to exceed $100, Provider will obtain Client consent before incurring such expenses on Client’s behalf unless exigent circumstances require otherwise.
2.6 Subcontractors. “Subcontractors” means third-party to whom Provider contracts to provide specified services to complete the services indicated in the applicable TOS.
2.7 Conditions of Service. Client’s System is eligible for provision of Services as set forth in a Service Order, provided the System is in good condition and the following serviceability requirements and site environmental conditions are met:
2.7.1 Client shall provide adequate workspace, heat, light, ventilation, electric current and outlets, internet, remote access, and long-distance telephone access for use by Provider’s representatives (including Third-Party Service Providers).
2.7.2 All such representatives shall have, and Client shall provide full access to the System.
2.7.3 Provider reserves the right to suspend or terminate the provision of any Service if, in Provider’s sole discretion, conditions at the Service Site pose a health or safety risk.
2.7.4 All equipment, software and licensing to be supported by Provider pursuant to a Service Order must be supportable by Provider and subject to any patches, security updates, manufacturer and Third-Party Service Provider support.
2.7.5 It is the responsibility of Client to promptly notify Provider of any events/incidents that may impact the Services and/or any supplemental service needs.
2.7.6 Unless otherwise specified in any subsequent Service Order, Provider shall provide Services during Provider’s regular business hours, unless otherwise specified in any subsequent Service Order, in accordance with Provider’s Service policies then in effect, which may be modified or amended at any time, in Provider’s sole discretion.
2.7.7 Client agrees to inform Provider prior to Client making any modification, installation, or service performed on the System by individuals not employed or contracted by Provider in order to assist Provider in providing an efficient and effective System support response.
2.7.8 Only representatives authorized by Provider will be eligible to access and service Client’s System. Any unauthorized access or service conducted on the System without the explicit consent of Provider, which results in negative System performance, will not be covered by the monthly plan fee as documented in the TOS or other contract documents and will be billed according to Provider’s labor rates as outlined in the TOS.
2.7.9 Provider shall be obligated to provide service only at the Service Site(s) as outlined in the Service Order. If Client desires to relocate, add or remove Service Sites, Client shall give notice to Provider of Client’s intention to relocate not less than sixty (60) days in advance. Provider reserves the right to modify or amend the terms of any Service Order with respect to any relocation and/or addition of Service Sites by Client. Such right includes the right to refuse service at the relocation and/or new Service Site.
2.8 Service Limitations. In addition to other limitations and conditions set forth in any Service Order, the following service and support limitations are expressed:
2.8.1 Cost of consumables, replacement parts, hardware, software, network upgrades and associated services are outside the scope of this Agreement. Provider will provide consultative specification, sourcing guidance and/or Time and Material/Project proposals for and Client consent to any of the foregoing prior to implementing any such additional Services.
2.8.2 Any unauthorized changes made to the System without Provider’s written consent which causes issues or failures to the System, are beyond the responsibility of Provider and Client will be billed the full cost of all labor, equipment, materials and related items or services to restore the System to the condition prior to any such unauthorized action.
2.8.3 Provider shall only be obligated to comply with the terms and conditions of a Service Order, provided that there is no Event of Default (as defined in Section 30).
2.9 Onboarding Process. Client acknowledges and agrees that Provider will have no responsibility for any deficiencies in the current System until (a) the Provider has had a reasonable opportunity to conduct a review of the current System and to provide Client with its recommendations, and (b) Client has accepted and implemented the same, or Provider has expressly agreed to provide some, but not all Services identified as part of its recommendations.
2.10 Offboarding Process. In the event of the suspension, expiration or termination of any Service Order by either party, except as otherwise set forth in a Service Order, Provider will make reasonable accommodations to transition the provision of Client’s Services to Client or such third party designated by Client (collectively the “Onboarding Provider”). Client shall indemnify and hold harmless Provider, any it’s Contracted Subcontractors and their respective directors, officers, members, employees, consultants and agents from and against any and all claims or losses resulting from the activities of Client or the Onboarding Provider during the transition period from Provider to the Onboarding Provider, inclusive of when Client obtains access to all super administrator accounts of their infrastructure.
Any transfer will require that Client’s account be fully paid at the time of transfer, inclusive of any offboarding charges.
2.11 Network Devices, Hardware and Systems. Provider shall only be responsible for providing Services to those components of the System identified by the Client and Provider and set forth in the Customer Portal. From time to time, an existing Service Order may be updated to include new devices, hardware or systems that have been agreed upon by the parties. Said updated Service Orders shall be in writing and agreed to by both parties and identified in the Customer Portal. Provider may, in its sole discretion, deny requests to add devices, hardware or systems. The Client shall bear the responsibility to isolate and protect the System by not allowing additional devices, hardware or system on the System unless approved by Provider. Provider shall have no responsibility for any devices, hardware or systems or damage resulting therefrom to such additional items or the System that are added to the System without Provider’s approval and those devices not identified in the Customer Portal. Provider shall have the right to declare an Event of Default if devices, hardware or systems are added to the System without Provider’s approval. If Client obtains new devices, hardware or systems from any source, including Provider, absent Client’s request that such new items be included in any existing Service Order, Provider’s Services shall not extend to any new devices, hardware or systems, unless and until both Parties agree in writing to a new Service Order and such devises appear in the Customer Portal. Said written, signed Service Order shall then become an addendum to the original Service Order and incorporated herein, and shall prevail over the original Service Order. Provider reserves the right to deny any Client requests for additional services or to add additional devices, hardware or systems as part of a new or existing Service Order for any reason in Provider’s sole discretion.
2.12 Authorized Contact(s). Client acknowledges and agrees that Provider will be entitled to rely on any directions or consent provided to Provider by any individual identified in a Service Order, or otherwise acting on behalf of the Client (collectively the “Client Authorized Contacts”). If no Client Authorized Contact is identified in an applicable Service Order, then the Client Authorized Contact will be the person(s) who approved a Service Order. If Client desires to change Client Authorized Contact(s), Client shall notify Provider of such changes in writing which, unless exigent circumstances are stated in the notice, will take effect three (3) business days thereafter.
2.13 Shared Administrator Credentials. Notwithstanding Client’s sharing of server, network, software application or any other access or administrative credentials with Provider, Provider will not be liable or responsible for any System outages, errors, breaches, data losses and/or misconfigurations, absent proof that Provider was the sole cause of any such outage, error, breach data loss, or misconfiguration.
3. CLOUD SERVICES.
The following shall apply to those Provider Services occurring or administered other than at a Service Site (the “Cloud Services”).
3.1 Access Information. Client is responsible for identifying and authenticating all users, for approving access by such users to the Services, for controlling against unauthorized access by users, and for maintaining the confidentiality of usernames, passwords, account information and other similar confidential information (collectively the “Access Information”) regarding any of Client’s computers, computer systems, computer networks, software applications or systems owned, licensed, leased, maintained or used by Client, whether or not part of the System and/or the Services. By federating or otherwise associating your usernames, passwords, and accounts with Provider, Customer accepts responsibility for the timely and proper compilation, review, modification and termination of any Access Information. Provider is not responsible for any harm caused by Client’s users, including individuals who were not authorized to possess or use such Access Information, but were able to obtain access because the Access Information was not restricted or terminated on a timely basis by Client. Client is responsible for all activities that occur as a result of the authorized or unauthorized use of the Access Information, and Client agrees to notify Provider immediately of any such unauthorized use.3.2 Use of System Content. Client agrees not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, including Client Content, Client Applications and Third Party Content, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Provider under a Service Order, Provider reserves the right, but has no obligation, to take remedial action if any material violates the foregoing restrictions, including the removal or disablement of access to such material. Provider shall have no liability to Client in the event that Provider takes such action. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership of all of Client Content and Client Applications. Client agrees to defend and indemnify Provider against any claim arising out of a violation of Client’s obligations under this section.
3.3 End of Cloud Services. Upon the expiration or termination of a Service Order, Client will no longer have rights to access or use the Services, including the associated Provider Programs and Services Environments; however, at Client’s request, and for a period of up to 60 days after the end of the applicable Services, Provider will make available Client’s Content and Client’s Applications as existing in the Services Environment on the date of termination. At the end of such 60-day period, and except as may be required by law, Provider will delete or otherwise render inaccessible any of Client Content and Client Applications that remain in the Services Environments.
3.4 Suspension of Cloud Services. In addition to Provider’s rights under Section 30, Provider may suspend any Client password, account, and access to or use of the Services if Client violates any provision within of this Agreement or of a Service Order, or if in Provider’s reasonable judgment, the Services or any component thereof are about to suffer a significant threat to security or functionality.
3.5 Cloud Service Termination. In addition to the Provider’s rights under Section 30, Client’s use of the Cloud Service may be terminated if it (i) poses a security risk to the Services or any third party, (ii) adversely impacts the Services or the Systems or content of any other client of Provider, (iii) in the reasonable judgment of Provider, subjects Provider, any Provider affiliates, or any third party to liability, or (iv) Client’s use is illegal or fraudulent.
4. RESPONSE; REPORTING.
4.1 Response. If a response time is set forth in an applicable Service Order, Provider shall perform the Services, and as required by such Service Order, respond to any notification received by Provider of any error, outage, alarm, or alert pertaining to the System, in the manner and within the time period(s) designated in any applicable Service Order (“Response Time”), except as may be modified for (i) periods of delay caused by (a) Scheduled Downtime (defined below), (b) Client Downtime (defined below) and (c) Vendor-Side Downtime (defined below); (ii) periods of delay in which Provider is required to suspend the Services to protect the security or integrity of the System; or (iii) network or other delays caused by a force majeure event
.4.2 Scheduled Downtime. “Scheduled Downtime” will mean those hours, as determined by Provider which will not occur between the hours of 9:00 AM and 5:00 PM (in the time zone where the facility from which Provider performs any such Services is located), Monday through Friday (excluding holidays defined by federal law) without Client authorization or unless exigent circumstances exist, during which time Provider will perform any scheduled maintenance or adjustments to the System. Provider will use commercially reasonable efforts to provide Client with at least twenty-four (24) hours advance notice of any Scheduled Downtime.
4.3 Client Downtime. Provider will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by Client actions or omissions (“Client Downtime”).
4.4 Vendor-Side Downtime. Provider will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by third-party service providers, third-party licensors, or “upstream” service or product vendors.
4.5 Reporting. In the event of any Scheduled Downtime, Client Downtime, or Vendor-Side Downtime, the Parties shall use commercially reasonable efforts to notify the other of the occurrence of any such event.
4.6 Application. Client and Provider expressly agree that this Section 4 is intended to be as broad as permitted under applicable law.
5. CONFIDENTIALITY AND NON-DISCLOSURE.
As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), in any format whether oral, written, electronic, or other, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, subject to the limitations set forth in this Section 5.
5.1 Client Confidential Information shall include any personally identifiable information or protected health information of Client employees, Client customers, and Client Data. Client acknowledges and agrees that these Terms do not constitute a Business Associates Agreement (“BAA”) as that term is defined in the Health Insurance Portability and Accountability Act (HIPAA; Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996 and as amended), and that the requirement for any such agreement in addition to these Terms may be necessary to provide the Services hereunder. Client shall be solely responsible for the consequences, if any, of moving forward with the Services hereunder without such a BAA and shall be the sole judge of the necessity for a BAA in addition to these Terms.5.2 Furthermore, Client hereby agrees to defend, indemnify and hold harmless Provider and any affiliated company, and Provider’s respective present and former shareholders, officers, directors and employees and our attorneys and agents, and our predecessors, successors, insurers, assigns, heirs, executors and administrators (collectively referred to as the “Indemnitee”), from and against any and all claims, demands, causes of action, actions, judgments, liabilities, losses, costs and expenses, including attorneys’ fees and costs, as they occur, brought against, imposed upon, or incurred or suffered by, the Indemnitee which in any way relate to the failure of Client to comply with these Terms in proper handling of protected health information not caused by Provider’s gross negligence and/or due to the absence of any necessary BAA, or failing to notify Provider of the necessity of same.
5.4 Confidential Information (other than Client Data) shall not include any information that:
(i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,
(iii) is received from a third-party without breach of any obligation owed to the Disclosing Party, or
(iv) was independently developed by the Receiving Party.
5.5 Protection of Confidential Information. The Receiving Party shall:
(i) protect and safeguard the confidentiality of all Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care,
(ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of any applicable Service Order, and
(iii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, independent contractors and agents who need such access.
5.6 Non-disclosure. Neither Party shall disclose the terms and conditions of any Work Order, TOS or Quote to any third-party other than its affiliates, legal counsel, insurers, and accountants without the other Party’s prior written consent, provided that such person or entity agrees to be bound by the confidentiality provisions set forth herein.
5.7 Compelled Disclosure. Without violating this Section 5, the Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by subpoena, court order or law to do so, provided the Receiving Party gives the Disclosing Party reasonable prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance (including, but not limited to, the engagement of independent legal counsel to advise the Receiving Party regarding its duties and obligations regarding any such potential disclosure), at the Disclosing Party’s expense, if the Disclosing Party wishes to contest the disclosure.
If the Receiving Party is compelled by subpoena, court order, or law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
5.8 Return or Destruction of Confidential Information. Upon request, each Party agrees to promptly return the other Party’s Confidential Information in its possession, custody or control, or to certify the deletion or destruction of Confidential Information; provided, however, that the Receiving Party may retain a copy of any Confidential Information to the extent (a) required by applicable law or (b) it would be unreasonably burdensome to destroy. In the event that return of or destruction of Confidential Information is unduly burdensome, or not feasible, the Parties shall extend the protections of these Terms to the retained Confidential Information.
Client agrees to timely furnish, at Client’s own expense, all personnel, all necessary computer hardware, software and related materials and appropriate and safe workspaces for purposes of Provider or its contracted subcontractors, performing the Services. Client will also provide Provider or its contracted subcontractors, with access to all information, passwords and facilities requested by Provider that is necessary for Provider or its contracted subcontractors, to perform the Services. Access may be denied for any reason at any time, however if access to information, passwords or facilities is denied, Client understands that Provider or its contracted subcontractors, may be unable to perform their duties adequately. and if such a situation should exist, Client will (i) be responsible for its performance under any Service Order (including, but not limited to, the payment of any amounts Client is otherwise obligated to pay but for its failure or refusal to disclose this information and (ii) indemnify and hold the Provider harmless from and against any and all claims arising out of or related to Client’s failure and/or refusal to provide access or disclose such information.
7. CLIENT RESPONSIBILITY TO PROVIDE EQUIPMENT.
Client acknowledges that from time to time Provider may identify and recommend (a) additional items or services that need to be purchased, licensed or otherwise acquired by Client, and (b) that changes in Client’s existing hardware, software, peripherals or other services (whether or not part of the System) may be required in order for Provider to meet its obligations to Client under a Service Order. In connection therewith, Client agrees to work in good faith with Provider to effectuate such purchases or changes, and any such purchases or changes to be performed by Provider shall be set forth in a new and/or amended Service Order. Any items or services not specifically included in a Service Order shall be the sole and exclusive responsibility of Client. If Provider is required or otherwise agrees to purchase any hardware, software, peripherals, equipment or other services in connection with Provider providing the proposed or agreed upon Services, absent any Service Order to the contrary, all such items or services will be the sole responsibility of Provider, which shall be the sole owner thereof with no option by the Client to purchase such items from Provider. Client will take commercially reasonable measures and precautions to ensure the quality, completeness and workmanship of any software, item, equipment or hardware furnished by Client to be used as part of the Services, or upon which Provider’s delivery of Services is dependent, and for ensuring that the computers, hardware, software, peripherals, equipment, facilities and other materials provided or made available to Provider or its contracted subcontractors, do not infringe or violate the rights of any third-party, and that all necessary licenses, permits, or authorizations for the use of each such item or service by Client and/or Provider has been obtained. Unless otherwise specified in a Service Order Provider shall not be responsible for providing any type of copy or backup of Client data or other electronic information, and Client shall be solely responsible to maintain adequate backup for all data and other information furnished to Provider.
It is Client’s sole responsibility for the design, adequacy and/or any failure or malfunction of any electrical, data transmission, internet, or telecommunications infrastructure or services that interferes with Provider’s performance of the Services, or otherwise causes damage or injury to Provider’s products or services and Provider disclaims all responsibility for any loss including data. Client shall also be solely responsible for the design, security and operation of the Service Site where any components of the System will be physically located, including but not limited to adequate ventilation and cooling services to ensure the optimal operation of the System.
8. CLIENT DATA OWNERSHIP AND RESPONSIBILITY.
Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any data, software, information or material submitted by Client to Provider for its use or consideration pursuant to a Service Order.
9. INTELLECTUAL PROPERTY.
Client acknowledges and agrees that any written program materials, protocols, research papers, or other writings, as well as any improvements, inventions new techniques, programs or products (collectively the “Work”) made or develop by Provider before, during or after the commencement or expiration or earlier termination of a Service Order shall be deemed to be made by Provider for the sole and exclusive benefit of Provider, and that Client disclaims any benefits of the so-called “work made for hire doctrine within the meaning of the United States Copyright Act, Title 17, United States Code. Provider retains all right, title and interest in and to in any Work invented, created or composed prior to, during the course of, or incident to the performance of a Service Order, as well as any code, software, materials, or methods created prior to, during the course of or after the conclusion of any Service Order (all such Work collectively referred to as the “Intellectual Property”). Client acquires no right or interest in any such Intellectual Property, by virtue of a Service Order or the work performed under any Service Order.9.1. Use of Intellectual Property. Client may only use and disclose Intellectual Property in accordance with the terms of a Service Order. Provider reserves all rights in and to the Intellectual Property not expressly granted herein. Client may not disassemble or reverse engineer any Intellectual Property or decompile or otherwise attempt to derive any software source code within the Intellectual Property from executable code, except to the extent expressly permitted by applicable law despite this limitation or provide a third-party with the results of any functional evaluation, or benchmarking or performance tests on the Intellectual Property, without Provider’s prior written approval. Except as expressly authorized in a Service Order, Client may not (a) distribute the Intellectual Property to any third-party (whether by rental, lease, sublicense or other transfer), or (b) operate the Intellectual Property in an outsourcing or Client business to process the data of third parties. Additional usage restrictions may apply to certain third-party files or programs embedded in the Intellectual Property, such applicable installation instructions or release notes are hereby incorporated by reference.
9.2. License Agreement.
(a) License. Provider grants Client a perpetual, non-exclusive, non-transferable license to use such Intellectual Property, including all programming, documentation, reports, and any other product provided as part of the Services solely for Client’s own internal use. At all times, all software on the System must be genuine and licensed, and Client agrees to provide Provider with proof of such licensing upon request. If Provider requires Client to implement certain minimum hardware or software requirements (“Minimum Requirements”), Client agrees to do so as an ongoing requirement of Provider providing Services to Client.
(b) Software Installation or Replication. If Provider is required to install or replicate Client software as part of the Services, Client will independently verify that all such software is properly licensed. Client act of providing any software to Provider will be deemed Client affirmative acknowledgement to Provider that Client has a valid license that permits Provider to perform the Services related thereto. In addition, Client will retain the duty and obligation to monitor Client’s System for the installation of unlicensed software unless a Service Order expressly requires Provider to conduct such monitoring. Client will indemnify and hold harmless Provider against all damages and expenses it may incur (including reasonable attorney’s fees and disbursements) related to Client providing unauthorized or infringing materials to Provider or any Client breach of this Section.
(c) Pre-Existing License Agreements. Any software product provided to Client by Provider as a reseller for a third-party, which is licensed to Client under a separate software license agreement with such third-party, will continue to be governed by the third-party license agreement.
(d) EULA. Portions of Service Order may require Client to accept the terms of one or more third-party end user license agreements (“EULAs”). If the acceptance of a EULA is required to provide the Services to Client, then Client hereby grants Provider permission to accept the EULA on Client behalf. EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in these Terms. Client agrees to be bound by the terms of such EULA and will look only to the applicable third-party provider for the enforcement of the terms of such EULA. If, while providing the Services, Provider is required to comply with a third-party EULA and the third-party EULA is modified or amended, Provider reserves the right to modify or amend any applicable Service Order with Client to ensure its continued compliance with the terms of the EULA. Client agrees to hold harmless and Indemnify Provider against Client violation of any of the terms and conditions included in the subject EULA.
9.3. Third-Party Products. Unless otherwise stated in a signed Quote, all hardware, software, peripherals or accessories purchased through Provider (“Third-Party Products”) are nonrefundable once the applicable signed Service Order is placed in our queue for delivery. Provider will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third-Party Products to Client, but will have no liability whatsoever for the quality, functionality or operability of any Third-Party Products, and Provider will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Third-Party Products. Unless otherwise expressly stated in a signed Service Order all Third-Party Products are provided “as is” and without any warranty whatsoever as between Provider and Client (including but not limited to implied warranties).
Client acknowledges that Provider has incurred substantial recruitment, screening, training, and administrative expenses with respect to its agents, including its employees, vendors and independent subcontractors. From the Effective Date of the first Service Order submitted by Client and ending one (1) calendar year after the date of expiration or termination of the last Service Order, Client shall not hire or contract directly or indirectly with any of the Provider’s employees, agents or subcontractors who have communicated with and/or worked on any Service for Client. Client and Provider mutually acknowledge and agree that it would be impractical and extremely difficult to ascertain the amount of monetary damages that would be caused by a breach by Client of this provision. Therefore, Client and Provider mutually agree that in the event of a breach by Client in any way of this provision, Client shall pay to Provider as liquidated damages, an amount equal to One Hundred Fifty Thousand Dollars ($150,000.00). This amount is an effort by both parties to properly and reasonably assess the damages that Provider would suffer as a direct result of a breach by Client, taking into account the following facts and circumstances: (a) an average employee working for Provider will generate significant net revenue for the Provider and remain employed by the Provider for an extended period of time; (b) Provider will lose significant revenue and incur significant costs in connection with attempting to replace such employee; (c) there is no guarantee that such employee can be replaced; and (d) accurately assessing the value of such employee to the Provider upon such breach is virtually impossible. In light of these circumstances, Client and Provider mutually agree that this liquidated damages provision represents reasonable compensation to Provider for the losses that it would incur due to any such breach. Client and Provider further acknowledge and agree that nothing in this Section shall limit Provider’s rights to obtain injunctive relief or any other damages including, but not limited to punitive, consequential, special, or any other damages, as may be appropriate in connection with Client breach of this Section.
Except as set forth in a Service Order, no warranty shall be provided by Provider. Any warranties shall be limited to those provided by a Third-Party Product Vendor.Notwithstanding any provision to the contrary herein, any warranty offered and provided directly by Provider product shall be deemed null and void if the applicable product is:
(i) altered, modified or repaired by persons other than Provider, including, without limitation, the installation of any attachments, features, or devices not supplied or approved by Provider
(ii) misused, abused, or not operated in accordance with the specifications of Provider or the applicable manufacturer or creator of the hardware or product, or,
(iii) subjected to improper site preparation or maintenance by persons other than Provider or persons approved or designated by Provider.
Notwithstanding the above, Provider does not warrant its products or services beyond a reasonable standard or skill consistent with industry standards. Provider does not guarantee or promise any cost savings, profits, or returns on investment, delay in delivery or performance.
Client understands and agrees that data loss or network failures may occur, whether or not foreseeable. In order to reduce the likelihood of a network failure or data loss, proper security for Client’s System including software and hardware updates must be maintained. Absent any contrary provisions in a Service Order, Client shall be solely responsible for and adhere to software and hardware updates and maintain specific security standards, policies, procedures set forth by the NIST Cybersecurity Framework available at https://www.nist.gov/cyberframework.
It is understood that within the Services provided, it is not the intent, nor does the Provider provide any type of internet security monitoring, cyber security monitoring, cyber terrorism monitoring, or other cyber threats for Client unless otherwise specified in the TOS. As cyber threats are always evolving it is strongly recommended that Client engage the services of a cyber protection third-party vendor to monitor the cyber controls and cyber activities in Client System. In no event, including the negligent act or omission on its part, shall Provider, whether under Service Order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, liability of Client to any third-party for its loss or injury, or for any other loss because of any cyber threat or activity or the consequences thereof, including, but not limited to, any data breach, any loss of data (including personally identifiable or protected information), loss of goodwill, loss of use of the System or any other hardware, peripherals, ore equipment, diminished market reputation, loss of business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any act of a cyber threat, cyber activity, terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom.
Any Service recommended and/or provided by Provider does not include any warranty or representation that Client will be compliance with any rule, regulation, National Standard or legal requirement. It shall be the sole and exclusive responsibility of Client to evaluate and determine Client’s compliance with any such standard. The Service recommended and/or provided by Provider may aid Client’s efforts to achieve regulatory compliance, however, any compliance shall, at all times, be the sole and exclusive responsibility of Client.
In no event, including the negligent act or omission on the part of Provider or its contracted subcontractors, whether under a Service Order or otherwise in connection with any of them, shall Provider or its contracted subcontractors be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if Client data is breached because of the distribution of unsolicited email, direct mail, facsimiles, telemarketing or because of the collection of information by means of any form of electronic malware, wiretapping, bugging, video cameras or identification tags.
In no event shall Provider or its contracted subcontractors, whether under a Service Order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any failure or malfunction of electrical, mechanical or telecommunications infrastructure and equipment or services, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God, national or global pandemic, or other physical event.
THIS SECTION LIMITS THE LIABILITIES ARISING UNDER ANY SERVICE ORDER AND IS A BARGAINED-FOR AND MATERIAL PART OF THESE TERMS. CLIENT ACKNOWLEDGES AND AGREES THAT PROVIDER WOULD NOT ENTER INTO A SERVICE ORDER UNLESS IT COULD RELY ON THE LIMITATIONS DESCRIBED IN THIS SECTION. CLIENT AND ANY OF CLIENT AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS, NOMINEES, CONSULTANTS, INDEPENDENT CONTRACTORS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “RELEASOR PARTIES”) AGREES TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT AS OTHERWISE NOTED IN THESE TERMS, AGREES TO RELEASE PROVIDER AND ANY OF THEIR AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, NOMINEES, CONSULTANTS, INDEPENDENT CONTRACTORS, SUBCONTRACTORS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “RELEASED PARTIES”) FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES. PROVIDER’S AGGREGATE LIABILITY RELATING TO ANY OF THE SERVICES SHALL BE AS QUANTIFIED IN THE SERVICE ORDER OR ANY OTHER CONTRACT DOCUMENTS, OR IF NOT SPECIFIED THEREIN, THE AGGREGATE LIABILITY SHALL NOT EXCEED THE PRICE FOR THE ITEM OR SERVICE SET FORTH IN THE SERVICE ORDER. PROVIDER SHALL NOT BE LIABLE TO CLIENT FOR ANY DELAY IN DELIVERY OR PERFORMANCE, OR FAILURE TO DELIVER OR PERFORM AT OR WITHIN THE DEADLINES SET FORTH IN THE SERVICE ORDER.
18. MUTUAL INDEMNIFICATION AND HOLD HARMLESS.
EACH PARTY AGREES TO THE FULLEST EXTENT PERMITTED BY LAW SHALL AT ALL TIMES DEFEND, INDEMNIFY, PAY, SAVE AND HOLD THE OTHER PARTIES AND ANY OF THEIR AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, INDEPENDENT CONTRACTORS, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS, NOMINEES, SUBCONTRACTORS, CONSULTANTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “MUTUALLY INDEMNIFIED PARTIES”) HARMLESS FROM EACH AND ANY AND ALL LIABILITIES, DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL AND CONSEQUENTIAL DAMAGES), COSTS, EXPENSES, SUITS, CIVIL OR ALTERNATIVE DISPUTE RESOLUTION PROCEEDING, LOSSES, CLAIMS, ACTIONS, VIOLATIONS, FINES AND PENALTIES (INCLUDING WITHOUT LIMITATION, COURT COSTS, REASONABLE ATTORNEY’S FEES AND ANY OTHER REASONABLE COSTS OF LITIGATION) (HEREINAFTER COLLECTIVELY, THE “CLAIMS”) THAT ANY OF THE MUTUALLY INDEMNIFIED PARTIES MAY SUFFER, SUSTAIN OR INCUR TO THE EXTENT CAUSED BY THE NEGLIGENCE OF THE MUTUALLY INDEMNIFIED PARTIES ARISING OUT OF THESE TERMS.THE PRECEDING INDEMNIFICATION OBLIGATIONS ARE CONDITIONED ON ANY OF THE INDEMNIFIED PARTIES: (I) NOTIFYING THE INDEMNIFYING PARTY PROMPTLY IN WRITING OF SUCH ACTION; (II) REASONABLY COOPERATING AND ASSISTING IN SUCH DEFENSE; AND (III) GIVING SOLE CONTROL OF THE DEFENSE AND ANY RELATED SETTLEMENT NEGOTIATIONS TO THE INDEMNIFYING PARTY WITH THE UNDERSTANDING THAT THE INDEMNIFYING PARTY MAY NOT SETTLE ANY CLAIM IN A MANNER THAT ADMITS GUILT OR OTHERWISE PREJUDICES THE INDEMNIFIED PARTY, WITHOUT CONSENT.
Provider will maintain at its own sole cost and expense at least the following types of insurance : (a) Commercial General Liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury, in an amount not less than One Million Dollars ($1,000,000) per occurrence; (b) Business Automobile Liability for hired and non-owned vehicles in an amount of not less than One Million Dollars ($1,000,000) for each accident; (c) Workers Compensation at statutory limits; and (d) Professional Liability Insurance covering errors and omissions and wrongful acts in the performance of the Services. Such insurance will bear a combined single limit per occurrence of not less than One Million Dollars ($1,000,000). Provider shall have Client included in the Professional Liability policy as an additional insured.
20. CLIENT INSURANCE.20.1. Commercial Property Insurance. Client shall secure at Client own cost and expense Property Insurance for Client equipment that is part of the provisions of the service agreement.
20.2. Cyber Insurance.
Client shall secure and maintain for the duration of the contract Cyber Liability Insurance to insure Client cyber exposures. Specific limits and coverages should be evaluated by a qualified insurance broker or risk manager to determine Client specific coverage and policy limit requirements. A minimal $1,000,000 Policy per occurrence/aggregate limit is required.
20.3. Mutual Waiver of Subrogation. TO THE EXTENT PERMITTED BY LAW, EACH PARTY WAIVES ALL RIGHTS AGAINST THE OTHER FOR RECOVERY OF DAMAGES TO THE EXTENT THESE DAMAGES ARE COVERED BY THE WORKERS COMPENSATION (TO THE EXTENT PERMITTED BY LAW), EMPLOYERS LIABILITY, PROFESSIONAL LIABILITY, GENERAL LIABILITY, PROPERTY INSURANCE, COMMERCIAL UMBRELLA/EXCESS, CYBER OR OTHER COMMERCIAL LIABILITY INSURANCE OBTAINED BY EITHER PARTY. CLIENT WILL NOT HOLD PROVIDER ITS SUBCONTRACTORS AND/OR THIRD-PARTY SERVICE PROVIDERS RESPONSIBLE FOR SUCH LOSSES AND WILL CONFIRM THAT CLIENT INSURANCE POLICIES REFERENCED ABOVE PROVIDE FOR THE WAIVER OF SUBROGATION INCLUDED IN THE TERMS OF EACH SUCH POLICY. CLIENT AGREES TO PROVIDE PROOF OF SUCH INSURANCE COVERAGE, ALONG WITH A WAIVER OF SUBROGATION UPON PROVIDER’S REQUEST.
The express remedies set forth in a Service Order will constitute Client’s exclusive remedies, and Provider’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (b) that the Services were performed improperly.
THE SERVICES AND GOODS OR OTHER DELIVERABLES ARE PROVIDED TO CLIENT STRICTLY IN ITS “AS-IS,” WHERE IS CONDIITON. PROVIDER DOES NOT MAKE ANY ADDITIONAL WARRANTIES, EXPRESSED, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE DELIVERABLES OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT.
PROVIDER DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET ANY OF CLIENT REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CLIENT MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO CLIENT, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.
No statement by Provider, its employees independent contractors, or agents, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify a Service Order in any way whatsoever unless or until such statement is included in a Service Order.
If any provision of a Service Order is determined by a court of competent jurisdiction to be illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, operative and enforceable, to the maximum extent permitted by law or equity while preserving its original intent, or if not capable of such reformation or reconstruction without affecting the validity or enforceability of the remaining terms and conditions. The invalidity of any part of a Service Order (including these Terms) shall not render invalid the remainder of the additional terms and conditions of the Service Order.
A Service Order may not be modified or amended except by a writing agreed to by an authorized representative of a Party to a Service Order.
The Parties are independent parties; and except as otherwise set forth in a Service Order, nothing shall make the Parties principal and agent, partners, employer and employee; nor does it create a joint venture. It is further understood that there is no relationship, including but not limited to a partnership, joint venture, subcontractor, or other commission-based relationship, between any party that referred Provider or Client to the other party.
The Service Order shall be governed by and construed in accordance with the laws of the State of Arizona without reference to principles of conflicts of laws. The Parties irrevocably submit to the exclusive venue and jurisdiction of the courts located within the State of Arizona.
Failure by either Party to insist upon strict performance of any provision herein shall not be deemed a waiver by such Party of its rights or remedies, or a waiver by it of any subsequent default by the other Party.
Neither party will be liable to the other party for delays or failures to perform its obligations under a Service Order because of circumstances beyond such party’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, pandemic, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.
Depending on the Service provided, a portion of Client data may occasionally be accessed or stored on secure servers located outside of the United States. Clients agree to notify Provider if Client requires Provider to modify our standard access or storage procedures.
Client may not assign Client’s rights or obligations under Service Order without Provider’s prior written consent, which shall not be unreasonably withheld. Provider may assign its rights, duties or obligations under any one or more Service Orders without the approval of the Client, provided, however, that Provider shall provide notice to Client of any such assignment.
30. BREACH, EVENT OF DEFAULT, AND REMEDIES.
30.1. Breach and Notice to Cure. Upon written notice to the other Party (the “Notice of Breach”), the occurrences in Sections 30.2 or 30.4 below shall each be deemed a material breach of a Service Order and, if not timely cured during the applicable time period (the “Cure Period”), shall be deemed a default (each an “Event of Default”).
30.2. Client Default. It shall be a breach by Client if it shall, at any time (i) fail to pay any sums owed to Provider when due and such payment remains unpaid for a period of five (5) days after written notice thereof from Provider; (ii) fail to comply with any other term or condition of a Service Order, and such failure continues for a period of ten (10) days after written notice thereof from Provider; (iii) becomes a party to any request for relief under the bankruptcy laws, adjudicated bankrupt, or if a receiver be appointed for Client, and such proceeding is not dismissed within sixty (60) days after notice thereof from Provider; or (iv) makes an assignment for the benefit of creditors.
30.3. Provider Remedies. Upon the occurrence of an Event of Default by Client, Provider shall be entitled to exercise, in its sole and absolute discretion, concurrently, successively, or in any combination, any one or more of the following: (i) accelerate all payments otherwise payable under a Service Order; (ii) suspend the delivery or performance of any items or services under a Service Order, until such time as the Event of Default has been completely cured to the reasonable satisfaction of Provider; (iii) declare the Service Order at an end; (iv) enter upon any Service Site and take possession of any and all hardware, equipment, peripherals, or other items of personal property owned by Provider; (iv) disable, change the passwords or access codes and otherwise deny access of Client to any of those parts of the System not owned by or directly licensed to Client; (v) bring an action against Client for actual damages (and attorney’s fees and costs) incurred as a result of such Event of Default; (vi) enforce its rights under any one or more of the Service Orders; and/or (vii) seek any equitable relief available to Provider, including, without limitations, the right of specific performance. Provider shall have no right to recover duplicative damages. All rights, options and remedies of Provider set forth in a Service Order shall be construed and held to be cumulative, and no one of them shall be exclusive of the other, and Provider shall have the right to pursue any one or all of such remedies, without pursuing any other remedy provided for herein. No waiver of any Event of Default by Provider shall be implied from any acceptance by Provider of any partial payments due hereunder or any omission by Provider to take any action on account of such Event of Default if such Event of Default persists or is repeated, and no express waiver shall affect Events of Default other than as specified in said waiver. The consent or approval of Provider to or of any act by Client requiring Provider’s consent or approval shall not be deemed to waive or render unnecessary Provider’s consent or approval to or of any subsequent similar acts by Client.
30.4. Provider Default and Client Remedies. It shall be a breach if Provider shall, at any time fail to comply with the terms of a Service Order, and such failure continues for a period of thirty (30) days after written notice thereof from Client, specifying in detail such failure to perform; provided, however, if the nature of Provider’s obligation is such that more than thirty (30) days are required for its performance, then Provider shall not be in default under this Lease if it shall commence such performance within such thirty (30) day period and shall thereafter diligently pursue the cure to completion. Upon an Event of Default by Provider, Client shall be entitled to pursue any or all rights and remedies available to Client, at alw or in equity, subject to the limitations set forth in the Service Order. Client shall have no right of offset against or claim of any reduction in any amount owed to Provider or any Third-Party Service Provider as a result of a breach or default by Provider unless or until such claim by Client has been adjudicated in a court of competent jurisdiction, by arbitration, or by the express written agreement of Provider, as applicable.
This IT Terms of Service (“IT-TOS”) is in conjunction with the Terms and Conditions, the signed Quote, Addendums, or any other unique attachment(s) which are all incorporated into the Terms and Conditions “Agreement” by this reference and are made a part of the Agreement by all intents and purposes. This IT-TOS does not replace the Terms and Conditions but incorporates all the provisions and obligations set forth in the Terms and Conditions. Should any provision of the Terms and Conditions and this IT-TOS conflict, the IT-TOS shall take precedence. Provider shall provide the Services described below to the standards stated in the Terms and Conditions.
This IT-TOS supplements the Terms and Conditions https://cloudit.co/legal by and between Provider and Client. Effective date and specific terms contained in the signed Quote prevail over this IT-TOS and the Terms and Conditions, which are all incorporated into the Agreement by reference and are made a part of the Agreement by all intents and purposes.
Whereas, Client desires to contract with Provider for the provision of IT Services, and Provider desires to provide IT Services to Client; Now therefore, for and in consideration of the premises contained herein and good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
ORDERING OF IT SERVICES
For purposes of this IT-TOS, an Order means a complete and signed Quote (either in electronic or paper form) provided to you by Provider for acceptance that describes the services (“Services”) you are subscribing to and the price of such Services, signed by Client, either manually or electronically.
Client’s use of the Services is governed by this IT-TOS, the Terms of Service and the terms of your Order/Quote Form. Client acknowledges and agrees to all terms and conditions, residing at:
Client represents and ensures that the individual placing the Order/Quote for Client has the legal authority to enter into contractual commitments and make purchase(s) for the Client.
Commencement of Services is contingent on Client’s satisfying Provider’s credit approval criteria. Provider reserves the right to, in its sole discretion, accept or reject any Order/Quote that Client submits.
TERM OF AGREEMENT/ AUTOMATIC RENEWAL
This IT-TOS shall automatically renew for subsequent terms (“Renewal Term”) beginning on the day immediately following the end of the Initial Term (as set forth in the signed Quote) unless either party gives the other notice not later than ninety (90) days’ prior to the end of the Initial Term of its intent not to renew this IT-TOS.
The Services may be terminated With Cause by either Provider or Client upon ninety (90) days’ prior written notice if the other Party:
Termination of IT Services covered by the Agreement before the end of the contracted term date (except as outlined above as “With Cause”) is considered an “Early Termination”. Client understands that early termination creates an undue hardship for Provider. Early Termination damages to Provider would be difficult or impractical to determine, and Client agrees that in such event, as Provider’s sole and exclusive remedy therefore, Client shall pay Provider for liquidated damages and discount repayment, and not as a penalty, an amount equal to 50% of the remaining months of service (Damages = (non-discounted monthly recurring fee X remaining months) divided by 2). In addition, Client agrees to repay all discounts received retroactively. Promotional rates will be forfeited, and Client agrees to pay the standard rates as indicated on the applicable IT-TOS, for all months of previously received discounted services in addition to liquidated damages fees. (Discount repayment = ((Standard monthly recurring fee – discounted monthly recurring fee) X number of previously paid months at the discounted fee. Further, some of Provider’s Third-Party Vendors including Microsoft have begun to charge annual Licensing Fees. The services and products offered by these third-party vendors may require Provider to purchase certain “per seat” licenses from these third parties to provide Client with these applications (i.e. Microsoft 365, Office 365). As per their requirements, the licenses cannot be canceled once they are purchased and cannot be transferred to any other customer. If Provider purchases a license for Client on an order, then those licenses will require a one (1) year term, or Client may be assessed additional monthly fees for purchasing month-to-month licensing instead of committing to the one (1) year term. For that reason, Client understands and agrees that regardless of the reason for termination of the Services, Client is required to pay for all applicable licenses in full for the entire term of those licenses. It is the Provider’s understanding that once the license is paid in full, Client will be permitted to use the applicable applications until the expiration of the license terms, even if Client moves to a different technology services provider.
Regardless of reason for termination of the Agreement, for any reason, Provider will assist Client in the orderly termination of services, including but not limited to, the timely transfer of the services to another designated Provider. Client agrees to pay Provider the actual costs of rendering such assistance.
Upon termination, all non-client owned hardware and software installed by Provider that was required to conduct systems/network support services are the property of Provider and will be surrendered and returned to Provider at the end of the IT-TOS.
Managed IT Services Standard (non-discounted rates).
Remote + Onsite
$300.00 /per user
$350.00 /per each
Provider will provide Client IT Services for Client’s systems/network located at the physical Service Address(s) listed in the signed Quote.
Any additional critical devices added to the systems/network at the locations covered in this IT-TOS without the consent or acknowledgement of Provider will not be honored or supported by Provider under this IT-TOS.
Provider reserves the right to renegotiate any and all rates based on additions of locations, hardware, software, hardware support requirements, and/or changes in IT Services as well as modify this IT-TOS (or any portion thereof) with a 30-day notice.
OUT OF SCOPE / LIMITATIONS
To ensure that our resources will provide fast, effective service, there are some services that are not covered and therefore considered outside the scope of the Agreement. Only those Services stated in writing in the signed Quote or any subsequent Quote are offered under the monthly rate. Client may request Provider’s assistance with any services that do not appear in the Quote and Client acknowledges that they may incur additional charges. Provider will make reasonable effort to notify client of any out-of-scope engagements requiring separate billing before work is initiated.
Client will designate a managerial level representative to authorize all systems/network support services as outlined in this IT-TOS. Whenever possible, said representative shall be present whenever a Provider service representative is on-site. It is Client’s responsibility to inform Provider of any changes made to this representation two (2) weeks in advance.
PRICING FOR SELECTED SERVICES
Rate fees are valid for the entire duration of the term (unless stated differently in the Order/Quote). Client may receive a promotional rate that is lower than the standard rate in exchange for committing to a multi-year term. Standard Rates are published in the Quote. Promotional rates can be forfeited by Client for Early Termination of the Agreement (see above termination section).
FEE SCHEDULE / PAYMENT TERMS / OUT OF SCOPE WORK
Provider IT SERVICES SUPPORT
Provider’s service desk provides a point of escalation when Client has an issue or question. Provider’s staff are available 24 hour per day/7 days per week. 365 days per year to log issues and support the Client’s team.
Priority Level 1 – General questions and all support requests
Priority Level 2 –After-Hours Emergency
Priority Level 3 – Escalated After-Hours Service Issues
SERVICE TICKET / ENTRY CHANNELS:
For all requests for service, including email requests to be accepted and processed, the following information must be included:
If the above required information is not in the email request, and the Client cannot be easily determined from the email address and message contents, the Help Desk will be unable to contact the requester and no further action will be taken.
Provider shall provide services as defined in the Agreement during business hours, unless otherwise specified in the signed Quote and in accordance with Provider’s IT Service policies then in effect.
Customer service will create or update a ticket for each call received, whether the issue is in or out of scope of the Agreement. For requests in scope, the technician will attempt to work the issue through to resolution. If there is a need for further investigation, Provider will follow up with the caller once triage has been completed. When out of scope additional support is needed or the call is regarding a project, Provider will assign the ticket to the appropriate escalation or project resource and they will follow up with the requester directly. Provider current hourly labor rate will be billed for Out-of-Scope services.
Periodic reboots for such devices as firewalls, routers, and servers are required to apply/activate critical update patches and configuration changes. Provider’s support services within this Agreement are predicated upon the Clients support and commitment to providing time/scheduling for network device reboots with Client’s staff and/or user’s support.
Web Portal – (Portal website provided during IT Services Onboarding) Client may request a login to Web Portal to submit service requests online. The Help Desk can receive service requests via portal and any such requests will automatically generate a ticket.
If the ticket cannot be resolved remotely during standard Service Hours, a reasonable effort may be made by Provider to resolve the issue outside Service Hours, depending on availability. If Client requests support outside of Service Hours or requests work to be performed that is determined to be Out of Scope of the Agreement. Client will be billed Provider’s current hourly labor rate.
CLIENT-PROVIDED BACK-UP SOLUTIONS
It is understood that Client has been fully and adequately been advised and understands the importance of implementing and utilizing an enterprise back-up and disaster recovery solution to protect Client’s data held within its network. If Client advises Provider that it has a back-up and data recovery solution currently in place and does not choose to use Provider for this service and Provider has vetted and approved Client’s existing back-up and disaster recovery solution, Provider will support Client pursuant to the terms of the Agreement herein only. Further, Client agrees to keep said approved back-up solution in place throughout the duration of this Agreement and provide Provider written documentation demonstrating the same. Should the back-up and disaster recovery solution expire and/or not be in place at any time during the duration of the herein Agreement, Client understands that Provider cannot be held responsible for the validity, restoration and/or protection of Client’s data.
Additionally, Client accepts fully responsibility for any loss of its data, regardless of the cause, and if Client requests Provider to attempt to restore the lost data, Client agrees to pay Provider its current normal hourly fee for any labor expended (including Desktop labor or for Systems, Server and Networking labor), by Provider to restore any lost data. In addition, Client will be solely responsible for any and all associated costs for restoration of the data including but not limited to the retention and/or involvement of third-party data recovery experts, travel expenses, licensing costs, etc. Alternatively, if at any time during the life of this agreement the customer’s data backup solution is not working or performing adequately, Provider, at its sole determination and discretion, may elect to install its back-up and disaster recovery solution and Client agrees to pay Provider its standard fee for the self-installed backup solution.
To enhance the services and deliverables provided by Provider, we utilize third-party providers for certain services. In addition to Provider, You MAY BE legally bound to the third-party providers Terms and Conditions. The third-party providers and their respective terms and conditions via a link is available at our web site at:
You may also be subject to and any other agreements and documents presented by the third-party that are required to provide the services, each as amended by the third-party from time to time. Provider does not guarantee the accuracy of the third-party party links or the content of the third-party terms of service.
This IT-TOS is effective only upon execution by Provider and Client and each party hereto warrants and represents that this IT-TOS, Terms and Conditions, signed Quote and any other attached document all together comprise the Agreement and constitute the legal, valid, and binding obligation of such party as of the Effective Date on the signed Quote.