TERMS OF AGREEMENT
This Managed Services Agreement (“Agreement”) is between Contracted Party (“you” or “Client”) and Titanium IT Inc (“Service Provider”) (each a “Party” and collectively, the “Parties”), and sets forth the legal rights and obligations governing your order for managed IT services, associated equipment and software, and the installation and service thereof (the “Services”), or any future oral or written request for Services made in addition to that covered by this Agreement and accepted by Service Provider. Service Provider reserves the right to periodically review and modify the terms of this Agreement, its Appendices, and any pricing associated herewith, with thirty (30) days prior written notice to Client.
TERM AND TERMINATION
The term of this Agreement shall commence on the date that Service Provider commences performance, which date shall be reflected in the first invoice submitted to Client (the “Effective Date”), and will continue in effect for %contracted term% years thereafter (the “Initial Term”). Contract will auto renew for a one-year term after expiration of the initial term unless provider is notified in writing 90 days prior to expiration of termination of services.
At the conclusion of the agreement term if contract is not renewed, Service Provider will assist Client in the orderly termination of Services, including the timely transfer of the managed IT services to another designated provider. Client agrees to pay Service Provider the actual costs of rendering such assistance.
Termination of this Agreement shall not relieve either Party of its respective obligations to comply with all terms of this Agreement that expressly call for performance prior to or subsequent to the termination date, including without limitation, the payment of fees and the parties’ respective obligations to protect Confidential information, as defined herein.
FEES AND PAYMENT SCHEDULE
Monthly recurring support fees will be invoiced to Client on a monthly basis and will become due and payable on the first day of the following month, unless stated otherwise on your invoice. Services may be suspended if payment is not received within thirty (30) days following the invoice date due. It is understood that any applicable Federal, State or Local taxes shall be added to each invoice for Services provided under this Agreement. Client shall pay any such taxes unless a valid exemption certificate is furnished to Service Provider for the State of use.
Managed Services outlines the monthly fees to be charged Client under the terms of this Agreement. Client is responsible for all listed charges, as well as any third-party fees applicable thereto.
Monthly recurring support fees are subject to monthly review for accuracy and completeness. Should adjustments or modifications be required that change the monthly fees, these changes will be based on actual user and device counts and the stated pricing per workstation/server or per user. Client will be provided a monthly report that identifies any such adjustments or modifications, and any change to the associated fee(s) will be reflected in the subsequent monthly invoice(s) unless disputed by Client in writing within thirty (30) days of the date of the applicable monthly report.
Client shall not be relieved of its payment obligations due to the failure of any third party to make timely payments.
All Invoices overdue past 15 days will Incur a 4% late fee + an administrative fee of $65. This fee will be recurring on all overdue Invoices
SERVICES COVERED AND CHANGE REQUESTS
Please reference ‘Appendix A – Titanium Services’ for an outline of the Services to be provided. Any request to add new technology, equipment, or software, or otherwise support that is considered in to be non-routine or require Titanium personnel to devote in excess of one business day to the task, shall be considered a “Project” and will be billed at Titanium’s agreed upon hourly rate in 15-minute increments.
Should Client wish to change the quantity or amount of Services provided (“Service Modification”), Client shall notify Service Provider of such change and, if approved by Service Provider, the Service Modification, and any corresponding adjustment to the monthly fees (including third-party fees), shall be reflected in the subsequent monthly invoice(s). In no case shall the fees associated with a Service Modification be prorated.
Should Client wish to add or remove Services, or change, add or remove the location of the Services provided, Client shall provide Service Provider sixty (60) days’ advance notice of any such request (“New Service Request”). Service Provider shall have thirty (30) days to approve such New Service Request. If approved, the New Service Request, and any associated fees and costs (including third-party fees), shall be reflected in the monthly invoice corresponding to the date that Service Provider commences performance. In no case shall the fees associated with a New Service Request be prorated.
Client will allow Service Provider reasonable access to location(s) at which the Services are being provided (“Premises”) as necessary and as authorized by Client for installation, inspection, testing and repair of the equipment, network or system and performance of any required activity and make available a reasonable amount of secure space for storage by Service Provider of repair parts and provide any assistance as necessary to allow Service Provider to perform Services.
In addition, Client represents and warrants that the Premises shall: (i) be in compliance with all applicable federal, state, and local laws, rules and regulations, including hazardous waste and environmental laws and/or regulations; (ii) be safe; and (iii) not contain, present, or expose Service Provider employees or agents to asbestos or other hazardous materials or substances. If Client breaches this Section, Service Provider may immediately suspend performance until Client has corrected such condition(s) and/or terminate this Agreement with respect to such Premises without liability.
MINIMUM STANDARDS REQUIRED FOR SERVICES
For Client’s existing environment to qualify for Service Provider’s Managed Services, the following requirements must be met (collectively, the “Minimum Standards”). The costs required to bring Client’s environment up to these Minimum Standards are not included in this Agreement and shall be billed separately.
- All Server and Desktop Software must be Genuine, Licensed and Vendor Supported.
- Client agrees that if the vendor of any software in use on Client systems announces the End of Support of a product or mandatory upgrade away from a version of their software the Client will engage Service Provider in a Project to purchase and deploy suitable and supported replacement software.
- The environment must have a currently licensed, up to date and Vendor Supported Server based Antivirus Solution protecting all Servers, Desktops, Notebooks/Laptops, and Email.
- Client agrees to utilize the Service Provider’ preferred Server backup solution suite, which is included in the service offering. Storage limits may apply.
- The environment must have a currently licensed, Vendor Supported Hardware Firewall between the Internal Network and the Internet.
- All Wireless data traffic in the environment must be securely encrypted.
- Client must have a static IP address available from at least one Internet Services Provider for every location.
HARDWARE COMPLIANCE AND EQUIPMENT LIFECYLES
Service Provider shall provide support of all hardware, equipment, and systems specified in Appendix A, provided that all items are eligible for coverage under a currently active vendor support contract or replaceable parts are readily available, and all software be genuine, currently licensed and vendor-supported (“Compliant Hardware”). The determination of Compliant Hardware shall be made by Service Provider in its sole discretion and shall govern regardless of whether Service Provider procures the item(s) at Client’s direction. Should any hardware or systems be deemed Noncompliant with these requirements (“Noncompliant Hardware”), if possible, Service Provider will provide Client with a proposal to bring the Noncompliant Hardware into compliance. If Client does not accept the proposal within thirty (30) days and/or compliance is not possible, the Noncompliant Hardware will be excluded from this Agreement and Service Provider shall have no obligation to support such Noncompliant Hardware. Should Service Provider elect, in its sole discretion, to support such Noncompliant hardware, any and all fees and costs associated with such support (including any third-party charges) shall be billed to Client at cost (“Noncompliant Hardware Costs”), including but not limited to Noncompliant Hardware Costs related to performance degradation, slowness, security intrusions or breaches, cosmetic problems, or impaired functionality.
Service Provider shall have no liabilities or obligations relating to Excluded Costs. As used in this Agreement, “Excluded Costs” means each of the following:
- Parts, equipment or software that are outside manufacturer support and/or in end-of-life status.
- Hardware and licensing costs.
- The cost of any replacement or upgrade parts, equipment, or shipping charges.
- The cost of any Software, Licensing, or Software Renewal or Upgrade Fees.
- The cost of any 3rd Party Vendor or Manufacturer Support or Incident Fees.
- The cost to bring Client’s environment up to minimum standards required for Services.
- Failure due to an act of God, building modifications, power failures or other adverse environmental conditions or factors.
- Service and repair made necessary by the alteration or modification of equipment other than that authorized by Service Provider, including alterations, software installations or modifications of equipment made by Client’s employees or anyone other than Service Provider.
- Maintenance of Applications software packages, whether acquired from Service Provider or any other source unless as specified in Appendix A.
- Programming (modification of software code) and program (software) maintenance unless as specified in Appendix A.
- Training or professional development.
COVERAGE HOURS, SUPPORT AND ESCALATION
Remote Helpdesk and Vendor Management of Client’s IT networks will be provided to the Client by Service Provider through remote means between the hours of 7:30am – 6:00pm EST Monday through Friday, excluding Service Provider’s observed holidays, which include all federally-observed holidays (except Veteran’s Day), as well as the day following Thanksgiving Day and December 24th (collectively, “Holidays”). Network Monitoring Services will be provided 24/7/365. To the extent Client requests, or circumstances require, Service Provider to provide onsite Services or other support, Service Provider generally will access the Premises between 9:00am – 5:00pm EST (“Onsite Hours”) but will make reasonable efforts to accommodate requests by Client to modify the Onsite Hours.
Support and Escalation
Service Provider will respond to Client’s Incident Tickets under the provisions specified, and with best effort after hours or on Holidays. Incident Tickets must be opened by email to our Support Team at firstname.lastname@example.org or by phone at 201-334-0579, Option 1. Each call will be assigned an Incident ticket number for tracking.
Service outside Normal Working Hours
Emergency services performed outside of the hours of 7:30am – 6:00pm ESET Monday through Friday, excluding Holidays, shall be subject to provisions specified.
Service Calls Where No Trouble is found
If Client requests onsite service and no problem is found or reproduced, Client shall be billed at the current applicable professional services billable rate.
During the Term of this Agreement, Service Provider and Client may be exposed to the other’s proprietary information (the “Confidential Information”). Each Party agrees to hold in strictest confidence and not to disclose to any person or use in any way for that Party’s own or another’s benefit any of the other Party’s Confidential Information or the terms of this Agreement and any associated proposals or orders. The parties agree that any violation of these provisions regarding confidentiality will result in irreparable injury to the other Party and agree that each shall have the right to seek a restraining order, injunction, or any other remedies available at law or in equity. The Parties agree to waive any bond requirement for enforcement of this provision.
(A) Client shall have the benefit of the manufacturers’ end user warranties for all Compliant Hardware provided hereunder. Client acknowledges and agrees that Service Provider shall have no liability or obligations with respect to either Compliant or Noncompliant Hardware, if Service Provider will provide reasonable assistance to Client in presenting any warranty claims relating to Compliant Hardware to the manufacturer. (B) Client agrees that installation, repair, or modification of a system by non-manufacturer certified technicians may void the manufacturer’s warranty and may result in a denial of hardware and/or software support services. (C) UNLESS OTHERWISE STATED IN THIS AGREEMENT THE WARRANTIES SET FORTH IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES FROM SERVICE PROVIDER.
SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF NONINFRINGEMENT, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OF TRADE, TRADE PRACTICE OR ANY WARRANTY OF SECURITY OR THAT THE SERVICES OR NETWORK TRANSPORT WILL BE UNINTERRUPTED OR ERROR FREE. SERVICE PROVIDER SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO SERVICE PROVIDER’S OR CLIENT’S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT, LOSS OR DESTRUCTION OF CLIENT’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES (SUCH AS TOLL FRAUD), COMPUTER VIRUSES OR ANY OTHER METHOD. SERVICE PROVIDER MAKES NO WARRANTY FOR USE OF THE SYSTEM AS A COMPONENT IN LIFE SUPPORT DEVICES OR SYSTEMS OR WITH RESPECT TO THE PERFORMANCE OF ANY SOFTWARE OR FIRMWARE.
LIMITATION OF LIABILITY
(A) IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE FOR: (i) ANY INDIRECT, SPECIAL, INCIDENTAL, OR EXEMPLARY DAMAGES; (ii) CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, COMMERCIAL LOSS OF ANY KIND WHICH INCLUDES LOSS OF BUSINESS, PROFITS, REVENUE OR SAVINGS, AND LOSS OF DATA OR MESSAGES; OR (iii) ANY DAMAGES OF ANY KIND RESULTING FROM UNAUTHORIZED USE OF THE SYSTEM, INCLUDING, WITHOUT LIMITATION, TOLL FRAUD OR COMPUTER VIRUSES. THIS PROVISION APPLIES TO ALL CLAIMS WHETHER BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY, AND WHETHER SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
WITH RESPECT TO ANY CLAIM FOR DIRECT DAMAGES, THE ENTIRE LIABILITY OF SERVICE PROVIDER FOR CLAIMS ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT SHALL NOT EXCEED EITHER THE VALUE OF THE PROPOSAL OR ORDER GIVING RISE TO THE CLAIM. This limitation applies notwithstanding any failure of essential purpose of such limited remedy. (B) Service Provider shall be liable for any physical damage it causes to the system or its components due to its gross negligence or willful misconduct. In such event, Client’s sole remedy shall be limited to Service Provider’s repair of the system or component, or if the system or component cannot be repaired, as determined by Service Provider in its sole discretion, replacement with a comparable system or component or a prorated refund.
Each Party shall defend, indemnify and hold harmless the other Party, and its respective directors, officers, trustees, members, employees and agents from and against any third party claim, suit, action or proceeding alleging bodily injury (including death) or damage to tangible property to the extent such injury or damage is caused by the gross negligence or willful misconduct of the indemnifying party, its employees, subcontractors or suppliers in connection with the performance of Services or the unauthorized disclosure or use of any confidential information, as defined below, provided that such claim is promptly reported to the indemnifying party in writing.
Except for Client’s payment obligations hereunder, a Party’s non-performance or delay shall be excused to the extent the failure or delay in performance is the result of events beyond such Party’s reasonable control including, without limitation, governmental actions, civil unrest, terrorism, power surges or failure, fire, water, acts of God including without limitation, rain, floods, earthquakes, or lightning.
NON-SOLICITATION AND NON-HIRE
During the term of this Agreement, and for two years immediately thereafter, Client agrees not to solicit for employment, hire or otherwise retain, directly or indirectly, any employee or independent contractor of Service Provider who performed services under this Agreement, without Service Provider’s prior written approval. If an employee or independent contractor is hired in violation of this section, Client shall pay to the other Party as liquidated damages a fee (the “Fee”) equal to 80% of the employee’s annual compensation within thirty (30) days of written notice of such violation. The Fee shall also be payable if the Service Provider consents to the engagement of the employee or independent contractor.
In addition, Client agrees that it will not engage in any commercial or other business relationship with, or contact, deal with or utilize, any third-party service provider without the Service Provider, if such third-party service provider was introduced to Client by the Service Provider in connection with this Agreement, except to the extent any such relationship is engaged in the ordinary course of business and consistent with past practices.
Notices shall be in writing and will be deemed given when delivered in person or when sent, with confirmed delivery, via electronic mail, facsimile, or overnight courier. The respective addresses of the parties for notice are: (i) to Client: at the address indicated on the Order; or, (ii) to Service Provider: Titanium IT Inc, Attention: Accounts Payable, 30-16 Broadway, Fair Lawn, NJ 07410. Client shall notify Service Provider of any changes to its address.
(A) Assignment. Client shall not assign this Agreement without Service Provider’s prior consent. (B) Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. (C) Waiver. A Party’s waiver of any default will not operate as a waiver of any contemporaneous or subsequent default. (D) Severability. If any Court finds any provision of this Agreement to be void, unlawful or unenforceable under any applicable statute or other controlling law, such provision shall be deemed severed and the remainder of this Agreement shall continue in full force and effect. (E) Governing Law. This Agreement shall be governed by the laws of the State of New Jersey without regard to its choice of laws principles. (F) Publicity. Client shall not issue a news release or other form of publicity (excluding any requisite federal or state reporting) concerning the existence of the Agreement or the Services without obtaining the prior written approval of Service Provider. (G) Agreement Precedence. In the event of any conflict between these terms and conditions of this Agreement and other documents attached hereto or agreed to by the Parties in writing, the order of precedence shall be: (i) the terms and conditions of this Agreement and, to the extent applicable, any contract governing Third-Party Obligations; (ii) applicable product/service proposals; (iii) any order; and (iv) any other attachments and/or exhibits. (H) Independent Contractor. Service Provider and Client are independent contractors with respect to all rights and obligations under this Agreement. (I) Execution. This Agreement may be executed contemporaneously in one or more counterparts, each of which shall be deemed an original, but which together shall constitute one instrument and the Parties may rely on a facsimile or digital signature to bind the other Party. (J) Entire Agreement and Modification. This Agreement supersedes all prior or contemporaneous proposals, communications, and negotiations, both oral and written, relating to the subject matter of this Agreement and constitutes the entire agreement between Service Provider and Client with respect to the subject matter herein. No subsequent agreement among the Parties concerning the Services shall be effective or binding unless made in writing and executed by authorized representatives of both Parties. Neither electronic mail nor instant messaging shall be considered a “writing” enough to change, modify, extend, or otherwise affect the terms of the Agreement.