b) Restrictions. The rights granted to Client in this Agreement are subject to the following restrictions: (i) Client 's use of the Managed Services shall be limited to authorized Users; (ii) Client shall keep all parts of the Managed Services at all times in its sole possession or the sole possession of the Authorized User; (iii) Client shall keep and maintain the Equipment and Software free and clear of all liens, charges and encumbrances; (iv) Client shall not license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit or make any part of the Managed Services or the Documentation available to any third party other than the authorized Users; (v) Client shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Managed Services or the Documentation; (vi) except as expressly stated herein, no part of the Managed Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any; (vii) Client acknowledges and agrees that Company shall own all right, title and interest in and to all Intellectual Property Rights (including all derivatives or improvements thereof) in the Managed Services and any suggestions, enhancement requests, feedback, recommendations or other information provided by Client or any of Client 's Users relating to the Managed Services.
c) General Requirements. Company and Client shall each provide the other with the name and contact information for the designated administrator(s) who shall be available to discuss any issues or questions related to the Managed Services.
d) Relationship. Company acknowledges that Company is, and its employees are, acting as independent consultants and not as an employee or employees of Client and, that neither Company nor its employees shall be eligible for any benefits made available to employees of Client.
e) Conditions. Client acknowledges that Company's obligations are expressly conditioned upon the Client, at Client's expense: (i) providing adequate access, where applicable, to all facilities, knowledgeable personnel, background information, content, computer systems, software, technical matter and data required for Company to provide the Managed Services, (ii) completing all tasks Client has agreed to perform in a timely manner and (iii) rendering assistance to Company as reasonably requested from time to time to facilitate performance of the Managed Services.
f) Change Orders. The parties agree that, at any time during the term of this Agreement, either Company or Client may request adjustments to the Managed Services, and the parties will negotiate in good faith any corresponding changes to Proposal Details and payment terms set forth therein and shall put such changes in writing. Absent any such agreement in writing, the scope of the Managed Services shall remain as set forth in Proposal Details.
g) Client Responsibilities. The Client agrees to contact the Company in one of the following ways: Via Phone at: 720-464-3478 or 480-291-8440 Via Email at: [email protected] Client agrees to purchase from or provide to the Company such parts, supplies, software, and other material as may be necessary and reasonable in order to maintain current IT network infrastructure, servers, and desktop workstations in good working order. It is understood that the success and satisfactory performance of any maintenance service or repair performed by the Company depends upon the quality of materials used. Therefore, the Client shall be fully responsible for any failure or dissatisfaction arising from any service or repair that is done using materials not purchased from or specified by the Company.
a) Request for support will be fulfilled based on priorities (Critical, High, Medium, and Normal) which are determined by urgency and level of impact.
b) Response is defined as a “good faith” effort to communicate with the Client using the contact information provided by the Client. Response may be via phone, voicemail, email or a personal visit.
c) Status Definitions with Initial Response Times: i) Critical – within 1 business hour: Catastrophic inability to complete job duties. Example: computer does not turn on or boot up properly. ii) High – Within 2 business hours: Loss of a major job duty. Example: Email not working, not connected to internet, inability to print, cannot send or receive emails. iii) Medium – Within 4 business hours: There is a problem to be solved, but Client is till functional and has other options available. Example: Desktop printer is not working, but Client has access to departmental printers. iv) Normal – Within 8 business hours: General request for machine setup reformat or other tasks that are not time sensitive. Example: User needs help but will not be available until a few days later.
a) Managed Services Fees. In consideration of Company providing the Managed Services, Client shall pay to Company the monthly agreed amount and reimburse the Company for those certain expenses as set forth in Proposal Details, or as otherwise described in this Agreement. Client shall pay all international, federal, state or local tariffs, duties, withholdings and taxes (other than taxes on Company's net income), including, without limitation, sales, use, excise, privilege, ad valorem and property taxes, or amounts in lieu thereof, based on any fees or charges payable under this Agreement or based on any Managed Services performed hereunder, whether such tariffs, duties or taxes are now or hereafter imposed by said jurisdictions.
b) Refunds. All fees set forth herein are nonrefundable and will cover services fees from the Company.
c) Price Increase. Notwithstanding the prices set forth above and in Proposal Details, the Company shall have the right to increase the Managed Service Fees or any expenses related thereto based upon an increase for any consumable supplies provided as part of the Managed Services. The Company shall provide written notice of any such price increases to Client.
d) Expenses. To the extent additional expenses are incurred, the Client shall reimburse Company for any such additional expenses as incurred to the extent they are pre- approved by Client. Any extra expenses not included in the monthly fees, or any hardware costs not covered by the monthly fees shall be invoice and billed to the Client. The Company will provide the Client with a clear, timely and accurate invoice and if the Client fees there is an error within the invoice, please notify the Company in writing before its due date.
a) Payment. All payments are due and payable on the fifteenth of each month. To the extent that the Company incurs additional expenses, payment is due within fifteen (15) days after invoice receipt. All payments shall be made in United States dollars.
b) Late Payment Interest. Client shall pay to Company interest on any amounts due but unpaid at the rate of the lesser of ten percent (10%) per annum or the maximum rate permitted by law, computed for each twenty-four (24) hour period during which payment remains in arrears.
c) Suspension. Services will be suspended if Client fails to make payment within five (5) days following the payment due date. The Company, should it choose, can exercise the suspension right as set forth herein, it may need to remove portions of the Managed Services, such as the Equipment or Software, in Client's facilities and Client agrees to promptly (i) provide the Company reasonable access to such facilities to do so and (ii) return any and all Equipment associated with the Managed Services to Client's central facility to facilitate such access. Upon payment in full of all amounts overdue (including any interest owed), Client may request the reactivation of its account. The Company shall reactivate any account within fourteen (14) days of the Client paying the Company in advance all applicable reactivation fees, provided that the Company has not already terminated pursuant to Section 6 of this Agreement.
a) Risk of Loss. If applicable, the Client assumes and shall bear the entire risk of partial or complete loss, theft, damage, destruction or other interruption or termination of use of the Equipment from any cause whatsoever other than ordinary wear and tear, from the date of delivery of the Equipment to Client until the Equipment is returned to and received by Company. Client shall immediately notify Company in writing, including providing reasonable details, of any loss, theft, damage, destruction or other interruption or termination of use of the Equipment.
b) Insurance. If applicable, the Client shall at all times during the Term, at its own expense, maintain: (A) all-risk property damage insurance covering the Equipment in an amount not less than the replacement value of the Equipment and (B) public liability coverage in with such companies as are in general usage by companies owning or operating similar property and engaged in a business similar to Clients with policy limits that are sufficient to cover the replacement cost of the Equipment at market value. Such insurance may be obtained by endorsement on any blanket insurance policies maintained by Client. All insurance so maintained shall provide for a thirty-day (30) prior written notice to Company of any cancellation or reduction of coverages and further shall provide that all insurance proceeds shall be payable to the Client and Company as their respective interests may appear. Company shall be named as loss payee and additional insured on all public liability insurance policies so maintained. Client shall furnish to Company copies of such insurance policies and satisfactory insurance certificates on or before commencing of the Managed Services, as well as anytime during the Term upon Company's written request.
a) The term of Company's Services under this Agreement shall commence on the Effective Date and shall continue for the period set forth in Proposal Details (the "Initial Term"). Upon the expiration of the Initial Term, the Agreement shall automatically renew for successive one month renewal terms (each a "Renewal Term," and collectively with the Initial Term, the "Term") at the Company's then current fees and pricing terms and conditions unless either party provides the other party with written notice of its intent not to renew within thirty (30) days of the expiration of the then current Term.
b) The Company may terminate this Agreement upon written notice to the other Party with a thirty (30) day written notice to the Client. The Client may terminate this Agreement after the initial term with a thirty (30) day written notice to the Company.
c) Company may terminate this Agreement upon written notice to the Client in the event Client fails to pay Company any amounts due hereunder within five (5) days after the payment is past due.
d) Upon the expiry or termination of this Agreement for any reason, each party will be released from all obligations to the other arising after the date of expiry or termination, except for those, which by their terms survive such termination or expiry. The termination of this Agreement in any of the circumstances aforesaid shall not in any way affect or prejudice any right accrued to any party against the other party, prior to such termination. For avoidance of doubt, it is clarified that upon the expiry or termination of this Agreement for any reason whatsoever (i) Clients right to use or benefit from the Managed Services shall immediately terminate; and (ii) Client shall return all Equipment and Software located at Client's facilities to Company at Client's expense within seven (7) days if any were provided. If Client fails to timely return any such Equipment and Software, Client agrees to promptly provide Company reasonable access to Client's facilities to remove such Equipment and Software and to reimburse Company for all costs associated with such removal. Client's obligation to make a payment of any outstanding, unpaid fees and reimbursable expenses shall survive expiry or termination of this Agreement.
a) Company is and shall be the exclusive owner or licensee of all right, title, and interest in and to the Managed Services, as well as all Intellectual Property Rights relating to the Managed Services provided hereunder, and any Intellectual Property Rights in the Inventions, Software and/or Tools delivered to Client in accordance with Proposal Details or used by Company in performing the Managed Services. No transfer of any Intellectual Property Rights is made pursuant to this Agreement.
b) If applicable, the title to the Equipment shall at all times remain with Company and Client shall protect and defend the title of Company and keep it free of all claims and liens other than those created by Company unless the Equipment is owned the Client.
a) Each party acknowledges that it will acquire knowledge of Confidential Information (as defined below) in connection with its performance hereunder and agrees to treat such information as confidential during the Term and following termination or expiration of this Agreement. "Confidential Information" includes but is not limited to all information, whether written or oral, and in any form, including without limitation, information relating to or concerning the research, Intellectual Property Rights, development, products, methods of manufacture, business plans, Clients, vendors, finances, personnel data, third party proprietary or confidential information and other material or information considered proprietary relating to the current or anticipated business or affairs which is disclosed directly or indirectly to either party. "Confidential Information" does not include any information (i) which either party lawfully knew without restriction on disclosure before it was disclosed, (ii) which is now or becomes publicly known through no wrongful act or failure to act of either party, (iii) which either party developed independently without use of the Confidential Information, as evidenced by appropriate documentation, or (iv) which is hereafter lawfully furnished to either party by a third party as a matter of right and without restriction on disclosure. In addition, either party may disclose Confidential Information, which is to be disclosed pursuant to a requirement of a government agency or law so long as either party provides prompt written notice to the other party of such requirement prior to disclosure.
b) Except as otherwise set forth herein, neither party shall at any time disclose or furnish to any firm, person or corporation or use, directly or indirectly, for any reason or purpose, any Confidential Information of the other party or any of its subsidiaries or affiliates of which such party may become aware as a result of the Services being performed, including without limitation any Client or end-user information, if any, arising out of the Services.
c) Each party agrees that, in the event of a breach or threatened breach of the terms of Section 9 or Section 9, monetary damages may be an insufficient remedy for unauthorized disclosure or use of the other party's Confidential Information or Intellectual Property Rights, and that such party shall be entitled, without waiving any other rights or remedies, to seek an injunction or other equitable remedy prohibiting any such breach without the need to post a bond or other security.
d) The provisions of Section 7 and Section 8 shall survive the expiration and termination of this Agreement.
a) Client hereby indemnifies and shall defend and hold harmless Company and its officers from any loss, claims, liability, damages or costs (including but not limited to reasonable attorneys' fees and expenses) based on (i) the operations, performance and/or nonperformance of any material provided by Client to Company; (ii) any infringement by any material provided by Client to Company of any Intellectual Property Rights or proprietary right of a third party; (iii) injuries or deaths of persons and for damage to property, howsoever arising from or incident to the use, operation or storage of the Equipment or use or operation of the Manages Services, whether such injury or death to person be of agents or employees of Client or be of third persons and whether such damage to property be of Client, or to property of other; or (iv) any damage to the Equipment to the extent not cause by Company. Client shall also indemnify, defend and hold Company harmless against any expense or liability from claims of unfair competition or infringement or contributory infringement of any patents, trademarks, trade secrets or copyrights related to use of the Managed Services in combination with products or services not supplied by Company.
b) Loss of Data. In no event shall the Company be liable for the loss of the Client’s data or records, corruption of the Client’s data or records or other liability arising out of, or related to, the services provided by the Company, the Client shall not hold the Company responsible and shall release any liability against the Company according to Clause 11. The Client shall be responsible for any data or record recreation if data or records are lost, corrupted or damaged. Client agrees that it shall be responsible for ensuring proper and adequate processing, back up and storage procedures.
10) Warranties.
a) Company warrants that the Managed Services will be performed in a workmanlike manner, in conformity with professional standards for comparable services in the industry and that the Managed Services will substantially conform to the requirements as set forth in this Agreement. For any breach of this warranty, Client's exclusive remedy shall be the re-performance of the deficient Managed Services.
b) If the Client is unhappy with any of the work performed by the Company, please inform the Company within five (5) business days and the Company will make all reasonable efforts to fix the problem without further charges to the Client. The Company’s work shall be deemed accepted in full if the Company is not informed with five (5) business days of performance of the work. During the course of providing services, the Client may purchase form the Company various Equipment. All equipment, except opened software and equipment specifically described as a non-returnable, can be returned to the Company for a period of ten (10) days for a full refund, minus any applicable shipping and/or restocking fees. All returned items must be in “like new” condition and include the original packaging. THE COMPANY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE.
c) Exclusive Remedies. THE REMEDIES PROVIDED IN SECTIONS 9 AND 10 ARE THE SOLE AND EXCLUSIVE REMEDIES OF THE PARTIES WITH RESPECT TO THE MANAGED SERVICES AND SHALL APPLY NOTWITHSTANDING FAILURE OF THEIR ESSENTIAL PURPOSE
11) Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUBCONTRACTORS BE HELD LIABLE TO THE OTHER PARTY FOR ANY LOSS OF DATA, LOSS OF USE, INTERRUPTION OF BUSINESS OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT(INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY'S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER FORM OF LIABILITY, INCLUDING WITHOUT LIMITATION INFRINGEMENT) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, WHETHER OR NOT ARISING FROM ITS NEGLIGENCE, SHALL NOT EXCEED THE AMOUNT EQUAL TO THE PAYMENTS MADE BY CLIENT TO COMPANY PURSUANT TO THIS AGREEMENT DURING THE SIX-MONTH PERIOD PRECEDING ANY DETERMINATION OF LIABILITY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12) Non-Solicitation of Employees.
During the term of this Agreement and for twelve (12) months thereafter, Client and Company agree not to knowingly induce or influence, either directly or indirectly, any of the other party's employees to terminate their employment and work for such party or any other person.
a) Publicity: Neither party will publish, distribute, or otherwise disseminate any press release, advertising, public comment, or publicity making any reference to the other party’s products or services or this Agreement without the other party’s written approval, such approval not to be unreasonably withheld or delayed. Notwithstanding the foregoing, Client hereby permits the Company to (i) list Client as a Client of Company on Company's website or marketing materials and (ii) issue a press release announcing the relationship created by this Agreement, the form and content of which is subject to Client's prior written approval not to be unreasonably withheld or delayed.
b) Notices: Any notice or other communication under this Agreement shall be in writing and shall be considered given when delivered personally, mailed by registered or certified mail, return receipt requested, nationally recognized overnight carrier or faxed to the parties at their respective addresses first set forth above (or at such other address as a party may specify by notice to the other). Notwithstanding the foregoing, Client agrees that Company may provide any and all notices, statements, and other communications to Client through e-mail to the Administrator.
c) Mediation and Arbitration: All disputes arising or related to this Agreement must exclusively be resolved first by mediation with a mediator selected by the parties, with such mediation to be held in Phoenix, AZ. If such mediation fails, then any such dispute shall be resolved by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association in effect at the time the arbitration proceeding commences, except that (a) Arizona law and the Federal Arbitration Act must govern construction and effect, (b) the locale of any arbitration must be in Phoenix, Arizona, and (c) the arbitrator must with the award provide written findings of fact and conclusions of law. The exercise of such arbitration rights by any party will not preclude the exercise of any self-help remedies (including without limitation, setoff rights) or the exercise of any non- judicial foreclosure rights. An arbitration award may be entered in any court having jurisdiction.
d) Governing Law: The validity, construction and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, excluding that body of law applicable to choice of law. The parties consent and submit to the jurisdiction and venue of the state and federal courts located in the state of Arizona to determine the validity, construction and performance of this Agreement.
e) Waiver: The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
f) Force Majeure: Company shall be excused from liability for unusual delays or failure to deliver or fill any requirements under this Agreement where such delay or failure is caused by acts of God, fires, floods, strikes, work stoppages, accidents, allocations, terrorism or other controls, or regulations, including export or import regulations of any foreign or U.S. federal, state or local government, shortage of trucks or any other means of transportation, fuels, materials or labor, or any other cause beyond Company's reasonable control, whether or not similar in kind or class to those mentioned.
g) Dispute Resolution: In the event of a good faith dispute regarding this Agreement, the parties will negotiate in good faith to resolve such dispute. If the dispute has not been resolved as provided herein within sixty (60) days of the initiation of such procedure, either party shall be free to seek appropriate legal recourse at law or in equity.
h) Assignability: This Agreement, the licenses granted, and the parties' rights and obligations hereunder may not be assigned by either party except with the express written consent of the other party, which consent shall not be unreasonably withheld. Any purported assignment not in compliance with the foregoing shall be null and void and of no effect; provided, however, that Company may assign this Agreement to a successor entity in the event of a merger, consolidation, sale, or license of all or substantially all of Company's assets or stock pertaining to this Agreement. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and its respective heirs, personal representatives, successors and assigns.
i) Entire Agreement: The Agreement Documents constitute the entire understanding between the parties hereto with respect to the subject matter hereof and supersede any and all prior agreements and understandings between the parties hereto with respect to the subject matter hereof, including without limitation, any warranties, representations, or agreements between Client and Company not set forth in the Agreement Documents.
j) Modification: No waiver, amendment or modification of this Agreement or any portion thereof, including future representations that are inconsistent with the terms set forth herein, will be valid unless made in writing and duly executed by each party hereto.
k) Severability: In the event one or more of the provisions contained in this Agreement shall be held invalid by a court of competent jurisdiction, that shall in no way affect the legality, validity, and enforceability of the remaining provisions contained herein.
l) Acknowledgment: Client and Company acknowledge that they have read this Agreement, that they have had an opportunity to consult with an attorney regarding the terms and conditions hereof, that they fully understand the meaning and significance of such conditions, and accept and sign this Agreement at their own free will and complete understanding of its present and future legal effect.
m) Representation on Authority of Parties/Signatories. Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party's obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms.
n) Counterparts: This Agreement may be executed in two or more counterparts and by facsimile, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
o) Necessary Acts, Further Assurances. The parties shall at their own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of this Agreement.