TEKEASE® Managed Services Terms of Service
1. ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS OF SERVICE. These terms and conditions (the “Terms”), along with any Addendum’s or Scope of Work documents executed between the parties (if applicable), herein become the exclusive, binding and entire agreement (“Agreement”) between you (the “Client”) and TEKEASE ON-SITE® (the “Provider”) with respect to the Service. These Terms are accepted by acknowledgement of Client’s initial payment to the Provider for the Service and/or commencement of performance by Provider.
2. SCOPE OF SERVICE. The Provider is engaged in the business of providing information technology support Service; and Client has retained Provider to perform the Service set forth in this Agreement. Provider shall provide Client with information technology support and maintenance and services proactively and as periodically requested by Client as part of the Agreement. Provider shall monitor and support the Client’s information technology (“IT”) infrastructure as provided by Client or defined in a separate Scope of Work (“SOW”). The Service includes remote help desk, problem resolution and escalation. (All such IT maintenance and support services are collectively referred to as the “Service” or “Services”).
3. SUPPORT ENTITLEMENT. The Agreement covers only Provider approved and documented Client hardware, software, network components and Client specific business applications (the “Environment”). Support entitlement for any component of the Environment begins with Provider’s approval and subsequent to the Client’s initial and ongoing payment for the Service to Provider
4. PRICE AND PAYMENT TERMS. Client shall pay Provider at the Provider’s then-current rates and on the Terms set forth into the Client by Provider. Client understands and agrees (i) that Services provided during a contract year after Client has used its package of purchased hours will be billed at the Time and Materials rates specified on the Service Request and (ii) hours purchased in packages expire at the end of the contract year and cannot be carried forward to the next contract year. Prices do not include any sales, use, service, or similar taxes that may be payable by reason of the Services performed by Provider, and Client will pay all such taxes (unless tax exempt) which may become due in connection with the Services. Service Order pricing will be reviewed by Provider annually and pricing adjustments may occur. Any pricing increases will require that Provider notify Client thirty (30) days prior to any such increase. Original pricing estimates are valid for thirty (30) days. Pricing does not include project based work that is not related to a covered break/fix event or is performed outside the scope of this contract, for example, new installations, upgrades, conversions or migrations. The Client agrees;
4.1. Recurring Services. Recurring Service charges from the Provider are due upon receipt of invoice. Client will be billed for Service on a quarterly basis in advance.
4.2. Due Date. All Client invoices are due upon receipt and payments shall be made in a prompt manner. Payments are accepted via Client check, credit card, or direct Automated Clearing House (“ACH”) deposit. Provider does not accept cash.
4.3. Hardware and Software Purchases. Hardware and Software purchases made by the Client require 100% prepayment. When terms have been approved and established Provider may accept a 60% deposit with the balance due upon receipt.
4.4. Wire, Small Parts, Cables, Connectors, Consumables, and Accessories. Client agrees that NO PARTS are included in the Agreement. Client agrees to pay the Providers Bill of Materials or Provider Invoice to the Client for any wire, small parts, cables, adapters, connectors, consumables or other small items the Provider routinely uses and has deemed necessary to provide the Client a proper installation, maintenance or repair under the Agreement.
4.5. Anti-Virus Software. Client will be billed by the Provider at current rates for any required system protection or antivirus software needed to ensure system security.
4.6. Payment Guarantee. Client shall at all times maintain a valid credit card on file with Provider as guarantee of payment. Client authorizes Provider to charge the Client’s credit card on file the outstanding amount of any invoice due past fourteen (14) days, including applicable taxes, freight charges, applicable restocking charges (maximum 25%), or unpaid balances resulting from any Client order or service invoice due.
5. OBLIGATIONS OF THE CLIENT. Pricing for Services are calculated under the assumption Client will comply with all obligations in Section 6. Client’s failure to meet these obligations my result in an increase in the monthly support fee if said failure(s) causes excessive remote support call volumes. Provider will make all reasonable efforts to provide support services to Client to remedy issues caused by Client’s failure to meet these obligations at the Time & Materials rates specified on the Service Request. Client understands and agrees that issues may arise caused by Client’s failure to meet these obligations that are beyond the capabilities of Provider to remedy.
5.1.1. Service Requests. Client shall promptly report all technical issues affecting the Environment to the Provider using one of the Providers approved notification methods. These methods include;
22.214.171.124. Submitting a Service Request thru the Provider’s Client Portal;
126.96.36.199. Submitting a Service Request thru the Provider’s Internet website;
188.8.131.52. Sending an email to the provider at the email address provided to the Client;
184.108.40.206. Calling the Provider Help Desk at the phone number provided to the Client.
5.1.2. New Technology and Third-Party Implementations. Any technology procured by the Client without the engagement and project planning of the Provider are not covered under the Agreement. New technology implementation requires a mutually approved project and implementation plan. The Client agrees they will not plan or schedule any new technology implementations without coordination with the Provider a minimum of fourteen (14) days in advance.
5.1.3. Client shall not use a Provider employee’s personal email or mobile phone as a means to report trouble.
5.2.1. Environment – Client agrees to operate Provider supported equipment within manufacturer’s environmental and usage specifications.
5.2.2. Physical Security – Client agrees to maintain Provider supported equipment in a physically secured room(s) with restricted access.
5.2.3. Infrastructure – Cabling and network topology must meet industry and vendor stated best practices.
5.2.4. Power – Covered devices will be powered by UPS (Uninterruptable Power Supply) or other form of filtered power. It is the Clients responsibility to ensure all covered devices are continuously protected by a Client supplied power filtering device.
5.2.5. Site Access – Client will be responsible for obtaining proper and adequate permission for Provider to enter upon and operate within the properties designated as Client’s work area, including after-hours access.
5.2.6. Equipment & Facilities – Client agrees Provider may utilize certain items of the Client’s equipment and may gain access to certain Client facilities. The Client retains title and ownership in all of Client’s equipment owned by Client and utilized by Provider and must grant authority for Provider to access Client’s facility. Facility access may be denied for any reason at any time; however if access to facilities is denied, Client understands that Provider may be unable to perform their duties adequately and if such a situation should exist, Provider will be held harmless.
5.2.7. Keys to Client Facilities – Major upgrades are best completed by the Provider after the Client’s normal business hours. In order to limit the Client’s operational downtime, the provider recommends the Client provide facility keys to Provider. Provider agrees to maintain all Client keys in a secure, locked cabinet in the Provider’s facility. Keys will only be used by the Provider when the Client is aware the Provider will be in the Client’s facilities. All use of the Client’s keys will be documented in the Provider ticketing system. Provider will not copy or duplicate any keys provided by the Client. All Client keys will be promptly returned by the Provider upon termination of the agreement.
6. EQUIPMENT AND SOFTWARE.
6.1.1. New Equipment – Equipment purchased from Provider is automatically eligible for support and services under the Agreement. While the Client may purchase hardware and software products from a third-party, additional fees to implement, support and entitle the technology will apply. All new equipment must be approved by Provider before it is considered as covered under the Agreement.
6.1.2. Limitations of Technology – Client acknowledges that technologies are not universally compatible, and that there may be particular services or devices that Provider may be unable to monitor, manage, or patch. Provider agrees to inform Client when it becomes aware of such a situation. Client agrees to correct the situation, if applicable, and to hold Provider harmless.
6.1.3. Loaned/Rented Equipment – The Client agrees that any equipment (hardware and/or software) utilized by Provider in the execution of any Service that is not explicitly purchased by Client shall remain the property of Provider, and must be returned if requested. Client further agrees to cease the use of any technology that remains the property of Provider upon termination of this agreement.
6.1.4. Standardization – Client will maintain hardware and software that meets Provider’s standards and only allow workstations that meet Provider’s standards on its network. Client will be responsible for all custom developed applications specific to Client’s business.
6.1.5. Third Parties – For third-party applications, Client will only use versions supported by the manufacturer, and will maintain a support contract with the manufacturer.
6.1.6. Licensing – Client will maintain proper licensing for the intended use of all covered equipment/software. Server and Desktop Software must be Genuine, Licensed and Vendor-Supported.
6.1.7. Warranty and Extended Service Contracts – Client will maintain vendor/manufacturer warranties or support contracts for all covered equipment.
6.2. CONSULTING SERVICES.
6.2.1. Technical Consulting – Client agrees to consult with Provider on all technology decisions which may affect Provider’s ability to support Client hardware, software, network, business applications. This includes any hardware or equipment which the Client intends to reside on the network or be accessed from the Client network.
6.2.2. Basic Technology Consulting is included in the Agreement and provided to the Client at no additional charge. Basic Technology Consulting is defined as day-to-day recommendations to the Client from the Provider regarding recommendations for Environment hardware and software replacement or purchase.
6.2.3. Special Project Consulting – Consulting fees for special projects including expansion to the Clients facility, major modification to the Client Environment, network infrastructure or structured wiring projects are chargeable to the Client as outlined in project specific Scope of Work.
6.2.4. Hardware and Software Consulting – The Provider may periodically consult with the Client on upgrading hardware and software in the Environment. While the Client is free to purchase hardware and software from any source they desire, the Client agrees to pay Provider a consulting fee on a Time and Materials basis for any hardware or software consulting they receive when the recommended solution is acquired from any third-party for the environment.
6.2.5. Client agrees they will not engage any third-party technology consultant regarding the Environment without first engaging the Provider. Third-party consulting includes engaging or participating in technology design, obtaining upgrade recommendations, purchasing new technologies, discussing technology implementation or making any technology procurement decisions which have an impact on the Provider managed Environment.
6.2.6. All special project and non-recurring consulting charges are due upon receipt from invoice date.
6.3.1. Employees –Client shall notify Provider promptly of the hire of any new employee. Client agrees to notify Provider immediately of the termination of any employee.
6.3.2. New and Emerging Technologies – Client agrees they will not procure or install any new technology hardware, products or services on the Environment without prior consultation and approval by Provider. Installation of any unapproved technology to the Environment by the Client which results in Client service or system failures will be billed to the Client on a Time and Materials basis by Provider.
6.3.3. Access – Client shall provide Provider reasonable physical and unrestricted remote access to all Client Workstations, Servers, Network Devices and resources.
6.3.4. Remote Access – At no time shall the Client install or use an unapproved remote control software to access any Client devices. Further, Client shall not allow any third-party to access a Provider managed workstation or server without prior coordination with Provider. Access to Client workstations by approved third-party vendors is permitted with prompt notification to Provider.
6.3.5. Passwords – Client acknowledges that Provider shall have access to all systems and resources to perform its duties under this Agreement including but not limited to access to any and all System and Administrative passwords. Client agrees that Provider shall not provide or reset any password for any individual not identified and validated by Provider. Client agrees to hold Provider harmless for resetting any password of a terminated Client employee when the Client has failed to promptly notify Provider of the termination.
6.3.6. Server and Domain Administrative Access – In order for the Provider to ensure business continuity and network security, the Client agrees Provider shall maintain sole Administrative Access and control of all Client Servers and Client hardware maintained by Provider for the duration of the agreement. Client understands they will not be provided with root level or system administrator passwords which are part of the Environment. Provider will not permit any third-party administrative access nor provide any administrative credentials to any third-party of the Client. Provider will provide the Client executive contact the Administrative credentials to the Environment upon termination of the Agreement.
6.3.7. Administrative and Root Access – Attempts by the Client, or any third-party engaged by the Client, to access administrative or root accounts of any server, workstation or Provider managed device in the Environment constitutes a material breach of the Agreement by the Client. This includes the installation of any software intended to analyze or evaluate any server, workstation or network device in the managed Environment. The Client agrees that such actions constitute a material breach of the Agreement by the Client and will result in the immediate termination of the Agreement and all service entitlement to the Client shall cease.
6.3.8. Wireless Access – In order for the Provider to ensure business continuity and network security Client agrees Provider is solely responsible for wireless access of any devices on the Provider managed Environment. Client acknowledges that Provider does not provide the Client or any third-party with the wireless encryption keys used to access the Clients isolated business network. All wireless devices added to the Provider managed isolated network must be added by the Provider. If Provider deems a device to be a threat to network security or operations of the Provider managed Environment, the Provider shall deny access to the device.
6.3.9. Firewall – Provider requires a Provider supported and maintained firewall be used at the Client’s main Internet connection point. Provider is solely responsible for managing the firewall. Provider may block Internet access to any website deemed by Provider as dangerous to the Client Environment.
6.3.10. Notification – Client will immediately notify Provider upon learning of any significant problem with the performance of covered network devices, applications or equipment.
6.3.11. Operations – Client will, as needed, purchase from the Provider, such software and hardware as may be reasonably necessary for the effective operation of its network and covered equipment.
6.3.12. Network Changes – Client shall coordinate with Provider if there is any change in the identity of Client’s Network Administrator or Internet Service Provider.
6.3.13. Policies – Client will adopt and enforce an IT Acceptable Use Policy and a Password Policy. Client will provide a copy of the Clients Acceptable Use Policy to the Provider with (7) days of adoption or any modification by the Client.
6.3.14. Collaboration – Client will meet with Provider quarterly for a business review and goal settings with decision-makers of Client in attendance. Client will also meet with Provider from time to time for performance updates. Client agrees to participate in Provider’s periodic Client Satisfaction Surveys. Client shall also make available to Provider all information and resources necessary for Provider to perform its obligations under this Agreement.
6.3.15. Software – The Provider reports software piracy to law enforcement. Client installation or use of unsupported, unlicensed, bootlegged or pirated software may result in immediate termination of the Agreement by Provider as a material breach of the agreement. Client agrees they shall not install, nor authorize the installation of any hardware or software on any server, workstation or network device in the Provider managed Client environment without prior coordination with the Provider. Installation of software without prior coordination with the Provider is a material breach of the Agreement by Client which will result in immediate termination of the Agreement by the Provider.
6.3.16. Software Updates – Updates are frequently available from software providers and system manufacturers. Provider shall determine when such updates are safe, appropriate and necessary to install and be properly supported on the Client systems. Client shall not attempt to install any restricted updates on a Provider supported system for the duration of the Agreement. Client is responsible to notify Provider if any system updates are failing to help ensure the system protection is optimized.
6.3.17. System Protection. Client agrees to maintain antivirus, spam and malware solutions supported or provided by Provider.
6.3.18. Client’s Responsibility to Back-Up Data. Client is solely responsible for performing the day-to-day tasks associated with creating archival or back-up copies of data stored on the network servers and/or on the hard drives of individual workstations. Client agrees that prior to Provider servicing any Client equipment it is Client’s responsibility to (1) back-up the data, software, information or other files stored on Client’s computer disk drives, peripherals, MP3 player, DVD player, camcorder, digital camera and/or on any other electronic storage device; and (2) remove all videotapes, compact disks, floppy disks, laser disks, cassettes, DVDs, film or other media from Client’s product. Client agrees that whether or not Client requests or uses back-up services from Provider and/or any third-party service provider, neither Provider nor their third-party service provider shall be liable under any circumstances for any loss, disclosure, alteration or corruption of any data, software, information, files, videotapes, compact disks, floppy disks, laser disks, cassettes, DVDs, film or other media.
6.4. SUPPORT OF THIRD-PARTY SOLUTIONS. Through numerous affiliate relationships with third-party solution providers, Provider may periodically recommend a third-party solution (“TPS”) to the Client. Examples of TPS include credit card merchant services, off-site back-up services, and certain cloud solutions, webhosting, Internet Service Providers, Voice over Internet Protocol (“VoIP”) solution providers and others. The Client’s acceptance of a Provider recommended TPS does constitute, nor entitle the Client to support of the TPS by Provider. Client agrees there shall be no expectation for any ongoing support or Service of the TPS by Provider as part of the Agreement. Client agrees to notify Provider of all problems with Client TPS, but shall engage the TPS provider directly for remediation of TPS related problems. Provider may assist the Client with implementation of a recommended TPS under a separate engagement agreement.
6.5. CHANGE CONTROL. If either party requests a change to the scope or execution of the Services, it shall submit details of the requested change to the other in writing and Provider shall, within a reasonable time, provide a written estimate to the Client:
6.5.1. the cost to the Client for Provider to implement the change;
6.5.2. the likely time required to implement the change;
6.5.3. any variations to the Provider charges arising from the change;
6.5.4. the likely effect of the change on the Services; and
6.5.5. any other impact of the change on the terms of the Agreement.
6.5.6. If the Client wishes Provider to proceed with the change, Provider has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Services and any other relevant terms of the Agreement to take account of the change.
7. NOT INCLUDED IN THE AGREEEMENT.
7.1. No hardware is included in this agreement. Provider may however provide Client hardware under a separate purchase agreement.
7.2. No supplies or consumable products (i.e. ink, toner, paper, etc.) are included in the Agreement.
7.3. No hardware warranty or replacement parts is included in this agreement. Client is responsible for maintaining a manufacturer hardware warranty or service contract on all equipment covered by the Agreement. No after-hours or emergency support services are included in the Agreement. After hours and emergency support services will be provided to the Client on a Time and Materials basis.
8. INTELLECTUAL PROPERTY. All Provider software, data systems, ticket data and documentation of Client systems by Provider are the Intellectual Property Rights of Provider.
8.1. License. Provider grants Client a revocable, non-sublicenseable, non-exclusive license during the Term of this Agreement to use the Provider Software for the purpose of using and accessing the Service within the Client organization solely for Client internal business purposes. The Provider Software is licensed to Client, not sold. Except for the limited license granted in this Agreement, Provider and its licensors retain all right, title and interest in and to the Provider Software, all copies thereof, and all Intellectual Property Rights in the Provider Software. Except for the license granted herein, all rights in and to the Provider Software, Provider Utility Software, Remote Monitoring and Management (“RMM”) Software and Services, Provider Back-Up Software and Services, Network Management Software and Services, Remote Control Software and Services, Business Continuity Disaster Recovery (“BCDR”) Devices and Services are reserved, and no implied licenses are granted by Provider.
8.2. Third-Party Components. The Providers Products, may contain certain third-party components (“Third-Party Components”) which are provided to Client under terms and conditions which are different from this Agreement located here. Certain Third Party Components may contain or be comprised of open source software code. Each open source Third Party Component has its own copyright and its own applicable license conditions. It is the Client’s responsibility to review such additional terms before using the Provider Products and Client acknowledges and agrees that Client’s use of the Provider Products shall be deemed Client’s express consent to this Agreement and such additional terms. Notwithstanding the foregoing, the following terms and conditions apply to all Third Party Components: (a) all Third Party Components are provided on an “AS IS” basis without warranty of any kind; (b) Provider will not be liable to Client nor will Provider indemnify Client for any claims related to the Third Party Components; and (c) Provider will not be liable to Client for damages of any kind, including for any direct, indirect, incidental, special, exemplary, punitive, or consequential damages with respect to the Third Party Components. Except as may be provided in the Additional Terms, Client’s sole and exclusive remedy with regard to any defect, claim, or other dispute relating to the Third Party Components is to cease use of such components.
8.3. Upon termination of the Agreement, by either party, said license is automatically revoked by Provider.
9. ON-SITE SERVICES. Whether an on-site visit by the Provider is necessary to address a Client’s issue will be determined at the sole discretion of Provider. For any such visits, Provider will not be responsible for moving any furniture or valuables. To ensure the health and safety of Provider’s service providers, Provider reserves the right to refuse or reschedule work due to unsafe conditions, which include, without limitation, extreme temperatures, natural disasters or the existence of other hazards, real or perceived. Someone at least 18 years of age must be present at all times during the on-site service and must review and approve all work completed. On-site services do not include the provision of any parts or accessories. On-site services may be performed by third-party, non-Provider employees.
9.1 CARRY-IN AND IN-SHOP SERVICES. Some hardware and software issues require advanced diagnostics and tools which are only available at the Provider’s service center. The Provider may determine a Client’s device needs to be brought to the Provider’s repair center for advanced diagnosis and repair of trouble issues. Due to the very nature of portable devices, the Client agrees to assist Provider in facilitating carry-in/in-shop repair of all portable devices by delivering the portable devices to the Provider’s service center. Examples of portable devices include notebook computers and tablets. Client also agrees they will pick-up the repaired portable device from the Provider’s repair center when notified the repair is complete. Provider agrees to provide pick-up, delivery and re-installation of non-portable devices. Examples include network devices, server, and desktop workstations.
10. CONFIDENTIAL INFORMATION. During the normal course of business between Provider and Client, either party may disclose its Confidential Information to the other party. All information relating to Client that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Provider and will not be disclosed or used by Provider except to the extent that such disclosure or use is reasonably necessary to the performance of Provider Work. All information relating to Provider that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Client and will not be disclosed or used by Client except to the extent that such disclosure or use is reasonably necessary to the performance of Client’s duties and obligations under this Agreement. These obligations of confidentiality will continue in force for a period of 1 year after the termination of this agreement, but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.
11. TERM AND TERMINATION. Unless terminated as provided herein, the Agreement will extend for a period of two (2) years and will automatically renew from year to year thereafter.
11.1. Client may terminate this Agreement without cause upon thirty (30) days written notice to the Provider. In the event of termination by Client, the Client agrees to pay the Provider within (14) days of invoice any unbilled Services performed for the Client by the Provider.
11.2. Client agrees Provider may immediately terminate the Service upon written notice to Client. Upon termination of the Service, Client’s right to use any Provider software, services or support ceases immediately. Client shall have no rights and Provider will have no obligations to provide Client any Service thereafter.
11.3. Client agrees the Provider is not obligated to assist the Client in transitioning to a new service provider but may do so upon the Client’s request and when approved by Provider executive management. The client agrees that any fees for service or costs associated with Provider assisting the client in transitioning to a new service provider will be billed to the Client at the Providers then current time and materials consulting rate.
11.4. Client agrees that any support or services requested by Client and approved by Provider subsequent to termination by either party will be provided on a Time and Materials basis.
11.5. Upon termination, by either party, Client shall facilitate Provider access to Client premises and Client systems to allow removal of any hardware and software owned by Provider. Client agrees to pay Provider for any Provider owned hardware or software not surrendered to Provider within seven (7) business days of termination.
11.6. No Penalties. No Refunds. Upon termination, the Client and Provider agree the Client shall not be penalized or charged by the Provider any contract early termination fees. Upon termination, the Client agrees that all prepaid services fees shall be immediately and fully consumed by the Providers administrative and technical service fees associated with the Provider off-boarding the client from the Provider systems. The Client understands and acknowledges they are not entitled to and will not receive any refunds for any prepaid services associated with the Agreement. The Client agrees the Provider fees associated with assisting the Client in transitioning from the Provider to another service provider are not included nor part of any prepaid service fees and the Client agrees to pay the Provider, in advance, all fees associated with such a transition.
12. RELATION OF PARTIES. The performance by Provider of its duties and obligations under this Agreement will be that of an independent contractor, and nothing herein will create or imply an agency relationship between Provider and Client, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
13. EMPLOYEE SOLICITATION/HIRING. During the period of this agreement and for twelve (12) months thereafter, neither party will directly or indirectly solicit or offer employment to or hire any employee, or subcontractor of the other.
14. WARRANTY AND DISCLAIMER. CLIENT EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT CLIENT’S SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Provider EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Provider MAKES NO WARRANTY THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES Provider MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE. CLIENT UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT CLIENT’S OWN DISCRETION AND RISK AND THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT’S COMPUTER/SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM Provider OR Provider OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO EACH CLIENT. Provider SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF CLIENT’S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF Provider HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO EACH CLIENT.
15. HARDWARE WARRANTY. Client acknowledges that no hardware warranty is included as part of the Agreement. Hardware warranties are provided only by system manufacturers. The Client agrees to maintain a manufacturer hardware warranty or manufacturer extended parts contract on all systems covered under the agreement for the duration of the agreement. If the Client fails to maintain an appropriate parts agreement with the manufacturer for any system covered by the agreement, the Client agrees to promptly pay Provider for any parts provided in the maintenance or repair of Client hardware.
16. BACK-UP OF CLIENT DATA. It is Client’s responsibility to back-up the software and data that is stored on Client’s computers, hard disk drive(s), and/or on any other storage devices Client may have, and Provider shall not be responsible at any time for any loss, alteration, or corruption of any software, data, or files. Provider shall not be liable in any way for damages arising from any part, equipment, peripheral, software or other product supplied to Client by Provider. Notwithstanding any language to the contrary, Provider’s maximum liability to Client arising from or related to Provider under this Agreement shall be limited to the sums paid by Client to Provider under this Agreement. Client acknowledges that no computer system or software can be made completely stable or secure, and that Provider cannot guarantee the stability, safety or security of Client’s network or data. Provider warrants that Services will be provided in a workmanlike manner, and in conformity with generally prevailing industry standards and the time frame, if any, set forth in the Service Order. Client is solely responsible for implementing and monitoring appropriate operational and security procedures, and for making appropriate backup copies of all data. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT.
17. LIMITATION OF LIABILITY. Due to the inherent risks associated with applying and failing to apply patches, Provider constantly reviews and updates our best practices based on the relative threats to patch delivery timing. Every effort is made to balance the reduction of vulnerabilities with the slight destabilization risk associated with applying new patches to otherwise stable systems. Spam control, patch definitions and antivirus definitions are managed and/or distributed by their respective software vendors, and as such, Provider has no direct control over the effectiveness or lack thereof of the software being applied. Provider shall not be held responsible for interruptions in service due to patches released by software vendors. In no event will Provider be liable for any loss of profit or revenue by Client, or for any other consequential, incidental, indirect or economic damages incurred or suffered by Client arising as a result of or related to Services, whether in contract, tort, or otherwise, even if Client has advised of the possibility of such loss or damages. In no event will Provider be liable for any loss of data that may occur, regardless of the cause of such loss of data. The total liability of Provider for all claims of any kind arising as a result of or related to this Agreement, or to any act or omission of Provider, whether in contract, tort or otherwise, will not exceed an amount equal to the amount actually paid by Client to Provider for Services during the three (90) day period preceding the date the claim arises. Client agrees that any material breach of this Agreement by the Client constitutes a waiver by the Client to any fees which they may be entitled to from the Provider by contract or by tort.
18. INDEMNIFICATION. Client hereby agrees to indemnify and defend and hold harmless at its sole expense, Provider (and its affiliates, employees, agents, representatives, directors and shareholders) from and against any and all claims , demands, liens, encumbrances, security interests, settlements, judgments, and other expenses, (including but not limited to cost of defense, settlement, and reasonable attorneys’ fees) of whatever type or nature, including, but not limited to, damage or destruction to property, injury (including death) to any person or persons, which are asserted against, incurred, imposed upon or suffered by Provider by reason of, or arising from or out of : (a) Client’s breach of this Agreement; (b) Client’s actual or alleged infringement of any software licensing violations, patent infringement, copyright infringement, trademark infringement, trade secret or other property or contract right of any other person; (c) Client’s actual or alleged failure to promptly pay sums due Provider or third parties; (d) Client’s failure to comply with applicable laws, regulations or ordinances; or (e) the acts or omissions of Client (or its officers, directors, employees or agents).
19. NON-ASSIGNMENT. Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.
20. ARBITRATION. Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of Illinois. The arbitration will be held in Peoria, Illinois. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
21. ATTORNEYS’ FEES. If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to recover reasonable attorneys’ fees and costs from the other party.
22. SEVERABILITY. If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
23. FORCE MAJEURE & MALICIOUS ACTS. Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control. This agreement is designed to cover the support needs of the Client during normal operating conditions. Provider shall not be liable for damages, delay, or default in performance if such delay or default is caused by conditions beyond its control including, but not limited to acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections, terrorist acts, fire, flood, electrical surges, deliberate malicious acts, theft and/or any other cause beyond the reasonable control of either party.
24. DISCLAIMER: Neither Provider, nor its third-party service provider(s), shall be liable for any failure or delay in performance due to any cause beyond Provider or service provider’s control. If Provider or its third-party service provider’s ability to render services is impaired by Client or by circumstances beyond the control of Provider or its third-party service provider, Provider and/or its third-party service provider may choose not to provide services. Service can also be denied if dangerous or unhealthy conditions are present, including possible code violations.
25. MODIFICATIONS TO TERMS OF SERVICE AND SERVICE. Provider may change the terms and conditions of the Service from time to time. Upon any such change to our terms, Provider will notify Client by posting changes to the webpage located at https://tekeaseonsite.com/business/mstos. Provider may also notify Client via email or United States mail of any such changes. Provider reserves the right to modify or discontinue the Service with or without notice to Client. Provider shall not be liable to Client or any third-party should Provider exercise its right to modify or discontinue the Service. Client’s use of the Service constitutes an affirmative agreement by Client to abide and be bound by these Service Terms and its modifications.
26. NO WAIVER. The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights.
27. ENTIRE AGREEMENT. This Agreement, along with any Addendum’s or Scope of Work documents executed between the parties (if applicable), constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
Updated 01/15/2016 | © 2016 TEKEASE ON-SITE