1. During the term of this Agreement, and for three (3) years thereafter, neither party shall without the prior written consent of the other, disclose to anyone any Confidential Information of the other. “Confidential Information” for the purposes of this Agreement shall include each party’s proprietary and confidential information such as, but not limited to, customer lists, business plans, marketing plans, financial information, designs, drawing, specifications, models, software, source codes, and object codes. Confidential Information does not apply to any portion of the Confidential Information that the party can prove: (i) was available to the public through no fault of the party; or (ii) either party already possessed prior to receipt from the other party; or (iii) was acquired from a third party without obligation of confidence; or (iv) was independently developed by the receiving party prior to receipt. Moreover, the parties may comply with a court order compelling production of the other parties’ Confidential Information, but that party must give the other party reasonable prior notice and use reasonable efforts to obtain confidential protection for that Confidential Information.

 

  1. Client and MSP both agree that they will not solicit for hire and it will not hire or otherwise engage any of each other’s employees or contractors, either directly or indirectly during any period services are provided under this agreement or in the 24-month period immediately following termination of this agreement.

 

  1. Force Majeure. Neither party shall be liable for any failure of or delay in performance of its obligations under this Agreement to the extent such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of God, acts of a public enemy, pandemics, fires, floods, wars, civil disturbances, sabotage, accidents, insurrections, terrorism, blockades, embargoes, storms, explosions, labor disputes (whether or not the employees’ demands are reasonable and within the party’s power to satisfy), acts of any governmental body, failure or delay of third parties or governmental bodies from whom approvals, authorizations, licenses, franchises or permits must be obtained, or inability to obtain labor, materials, equipment, or transportation or illness of MSP’s technical staff (collectively referred to herein as “Force Majeure”). Each party shall use reasonable efforts to minimize the duration and consequences of any failure of or delay in performance resulting from a Force Majeure event. In the event of a Force Majeure, MSP will not be required to have technicians work during periods or at places where their safety or health could be in jeopardy and in any event will not require technicians to go on site. 
  2. MSP warrants it will perform its services consistent with industry standards, will use commercially reasonable efforts to provide the support specified in this Agreement free of defects and will perform its services in a workmanlike manner. Client shall report to MSP any defects that are found in MSP’s work within ninety (90) days of performance of the work by MSP. MSP’s sole obligation shall be to reperform any work/services that were not performed in compliance with industry standards or workmanlike manner. Other than the foregoing warranty, MSP does not make and specifically disclaims any other actual, expressed or implied warranty relating to the subject matter of this Agreement. An MSP contractor is a technician or contractor who operates on behalf of MSP, is paid by MSP and has access to MSP’s service ticket management system for making time entries and charges for their work.  MSP is not responsible for the acts of other technicians, contractors or consultants providing service to Client not under its control and direction.  If Client purchases equipment from MSP it understands and agrees that it will look to the manufacturer for all remedies and warranties and agrees that MSP is not responsible for functioning of the equipment and has not made any express or implied warranties.  MSP shall not be liable for any claim or demand against the Client by any third party on account of errors or omissions performed hereunder.

 

  1. MSP shall not be liable to Client or any of its affiliates for any damages, whether incidental, direct, indirect, special, consequential or punitive damages arising out of service or equipment provided hereunder, including but not limited to loss of profits or revenue, loss of use of equipment, lost data, or loss to person or property, costs of substitute equipment or other costs even if MSP has been advised of the possibility of such damages. Regardless of the form of action, MSP’s cumulative liability shall be only for loss or damage directly attributable to negligence of a MSP employee or contractor, for the cost of restoring the network to its condition prior to the negligence, but in no event to exceed Thirty Thousand Dollars.  If a collection action is initiated by either party or if MSP has to defend any action by Client, MSP is entitled to recover its reasonable attorney fees and expenses from Client. 

 

  1. Remote access to personal computers and/or networks. If or when Client transitions to home or alternative networks, MSP will make best effort to make connections and serviceability.  However, home or alternative networks may not have adequate internet connectivity and equipment to effectively work.  MSP is not responsible for inadequacies in those home or alternative networks or to secure those connections. Home equipment will not be as secure and may not have MSP’s software and security features.  MSP is not responsible for the security of the home or alternative networks.  Work on a home or alternative network unless otherwise included is outside the scope of this Agreement and MSP may charge its then hourly rate for work on home or alternative networks.  MSP will charge for additional software installed at home or alternative networks as needed. 

 

  1. Client agrees to carry liability insurance and property insurance covering any damage to its network as well as to any clients of the Client adversely affected by Client’s network functioning or transmissions from its network. Client will indemnify and hold MSP harmless from any third- party claims arising through Client or from customers of Client with respect to the subject matter of this Agreement.

 

  1. MSP reserves the right to make changes or add additional terms, conditions and provisions to this Agreement upon thirty (30) day advance written notice to client containing the proposed addition or change. If the additions or changes are not objected to then they shall take effect at the end of the 30 days.  Within the 30 days Client may submit changes or objections to the proposed changes or additional terms.  If the parties do not agree on the change or addition then it shall not become part of the Agreement; provided however, MSP reserves the right to terminate the Agreement if Client does not accept the proposed change.  All the terms, conditions and provisions of this Agreement, including any changes made pursuant to this paragraph will continue to apply during any renewal term. 

 

  1. Failure to pay. In the event payment is not received by the first of the month for that month of service, MSP reserves the right, upon providing five (5) days advance written notice, to put a hold on rendering on-site and remote services until monthly fee has been paid.

 

  1. It is understood that any Federal, State or Local sales or use taxes applicable to the performance of this Agreement shall be added to each invoice for services or materials provided by MSP. Client shall pay any such taxes unless a valid exemption certificate is furnished to MSP for the jurisdiction of use.

 

  1. Interest on Past Due Amounts. If Client fails to make payment for any services or items purchased on or before the due date, and such failure continues for thirty (30) days, interest shall accrue on any amount due at the rate of 12% per annum until paid. In the event collection processes are instituted to collect any amounts due from Client, Client shall pay the costs of collection plus reasonable attorney fees.

 

  1. This Agreement is not assignable by either party without prior written notice and acceptance by the other party. If approved, upon assignment the assignee’s name, address and contact information shall be provided to the other party. This Agreement shall be fully binding and enforceable as against all permitted assignees and successors in interest. 

 

  1. CLIENT CYBER SECURITY. It is understood that within the Services provided it is not the intent, nor does the (MSP) provide any type of internet security monitoring, cyber security monitoring, cyber terrorism monitoring, or other cyber threats for You unless otherwise specified in additional contract documents. As cyber threats are always evolving it is strongly recommended that You engage the services of a cyber protection third-party vendor to monitor the cyber controls and cyber activities in Your System. In no event, including the negligent act or omission on its part, shall MSP, whether under these Terms, a SOW, other contract documents, 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 act of 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.

 

Termination: Client may terminate this Agreement with or without cause at any time. Funds paid will be refunded less any outstanding charges prior to Notice and any services connected to termination of services. (MSP) may terminate this Agreement upon giving Notice to Client ten (10) business days prior to the effective date of termination. Notice must be in writing by mail or email between the persons who signed this agreement.