Managed Service Agreement
PERIOD OF SERVICE
This Agreement shall be effective as of the date of this Agreement, execution by CLIENT unless sooner terminated in accordance with the terms hereof, and shall be for the term chosen by the client twelve (12) months, twenty four (24) months or thirty six (36) months. CLIENT and IT Simplicity, Inc reserve the right to review this agreement quarterly.
CONTINUANCE / AUTOMATIC RENEWAL
This Agreement shall renew automatically at the end of the prior Agreement term for a period of twelve months (12) unless IT Simplicity, Inc or the CLIENT affirmatively terminates it in accordance with the conditions set forth in this Agreement.
SCOPE OF NETWORK SUPPORT AGREEMENT
This Agreement is designed to provide the CLIENT with centralized, proactive monitoring and professional network support services for all locations, critical devices and software applications as outlined in pages 1, 2 and 5 of the service agreement .
CONDITIONS OF SERVICE
The CLIENT Network is eligible for participation in IT Simplicity, Inc as outlined in this Agreement provided it is in good condition and IT Simplicity, Inc serviceability requirements and site environmental conditions are met:
- CLIENT shall provide adequate workspace, heat, light, ventilation, electric current and outlets, internet, remote access, and long-distance telephone access for use by IT Simplicity, Inc representatives.
- IT Simplicity, Inc representatives shall have and the CLIENT shall provide full access to the Network in order to effect the necessary monitoring and/or supplemental services.
- IT Simplicity, Inc reserves the right to suspend or terminate this Agreement if in its sole discretion, conditions at the service site pose a health or safety threat to any of IT Simplicity, Inc representatives.
IT Simplicity, Inc reserves the right to inspect the Network upon the commencement of the term of this agreement for the purpose of creating a diagram of the Network and/or conducting a diagnostic test of the Network. Unless stated otherwise, said inspection shall be charged against the Account using our standard hourly billing rates as outlined in page 1 of the service agreement.
It is the responsibility of the CLIENT to promptly notify IT Simplicity, Inc of any events/incidents that could impact the services defined within this agreement and/or any supplemental service needs.
IT Simplicity, Inc shall provide services as defined in this agreement during business hours, unless otherwise specified, and in accordance with IT Simplicity, Inc Network policies then in effect.
CLIENT agrees that it will inform IT Simplicity, Inc of any modification, installation, or service performed on the Network by individuals not employed by IT Simplicity, Inc in order to assist IT Simplicity, Inc in providing an efficient and effective Network support response.
Only representatives authorized by IT Simplicity, Inc will be eligible to access and service CLIENT network. Any unauthorized access or service conducted on the network without the explicit consent of (Service Provider) which results in negative network performance will not be covered by the monthly plan fee as documented in page 3 of the service agreement, and will be billed according to IT Simplicity, Inc labor rates as outlined in page 1 of the service agreement.
IT Simplicity, Inc shall be obligated to provide service only at the Service Site(s) as outlined in the Service Agreement. If the CLIENT desires to relocate, add or remove locations, the CLIENT shall give appropriate notice to IT Simplicity, Inc of its intention to relocate sixty (60) days in advance. IT Simplicity, Inc reserves the right to renegotiate service terms with respect to any relocation and/or addition of locations by the CLIENT. Such right includes the right to refuse service to Network at the relocation and/or new site.
In addition to other limitations and conditions set forth in this Agreement, the following service and support limitations are expressed:
- Cost of consumables, replacement parts, hardware, software, network upgrades and associated services are outside the scope of this agreement. IT Simplicity, Inc will provide consultative specification, sourcing guidance and/or Time and Material/Project offerings.
- Any unauthorized changes made to the network without IT Simplicity, Inc written consent which causes issues or failures to the Network, are beyond the responsibility of IT Simplicity, Inc and the CLIENT will be billed the full cost to restore the network to its original state.
- Except as otherwise stated in the Service Agreement of this agreement all Server, Network Device and Software upgrades are outside the scope of this agreement.
- Manufacturer warranty parts and labor/services are outside the scope of this agreement.
- Periodic reboots for such devices as firewalls, routers, and servers are required to apply/activate critical update patches and configuration changes. IT Simplicity, Inc support services within this agreement are predicated upon the CLIENT’S support and commitment to providing time/scheduling for network device reboots with its staff and/or users support.
- Application software support is limited to the manufacturer’s products listed in page 5 of the Service Agreement.
- Printer maintenance support is limited to non-warranty servicing of printer products listed in page 5 of the agreement.
- Virus mitigation within the scope of this agreement is predicated on CLIENT satisfying recommended backup schemes and having appropriate Anti-Virus Software with current updates. Virus Removal and disinfections services are outlined in full detail in page 3 of this Agreement.
- Restoration of lost data caused by systems/hardware failure is outside the scope of this agreement, unless otherwise stated in the Service Agreement.
- This agreement and support services herein are contingent on CLIENT’S permission of IT Simplicity, Inc having secure remote access into CLIENT’S network (e.g. VPN, Citrix/AccessIT, Telnet, SSH, RAS or other solution expressly approved by IT Simplicity, Inc). Depending on the remote access solution used, additional charges may apply to the contract.
- Force Majeure: IT Simplicity, Inc shall not be liable for any problems due to external causes beyond its control including, but not limited to, terrorist acts, natural catastrophe, fire, flood, or other act of God, and/or power failure, virus propagation, improper shutdown of the Network and related Network Systems/Services.
- Support services required or requested outside the scope of this agreement may not be exchanged for days or services within this agreement. Out of scope support services are available and will be provided on either a Time and Material, or Project basis.
For purposes of this Agreement, the Network shall include all locations as outlined in page 1. In addition, this agreement will cover all critical devices as listed in page 5 .
Any additional critical devices added to the network without the consent or acknowledgement of IT Simplicity, Inc will not be honored or supported by IT Simplicity, Inc under this agreement.
IT Simplicity, Inc reserves the right to renegotiate rates based on additions of locations, hardware, software, hardware support requirements, and/or services as well as modify this Agreement (or any portion thereof) with a 30-day notice.
CLIENT will designate a managerial level representative to authorize all Network Support Services as outlined in this Agreement. This information will be maintained in pages 1 thru 6 of this Agreement. Whenever possible, said representative shall be present whenever a IT Simplicity, Inc service representative is on-site. It is the CLIENT’s responsibility to inform IT Simplicity, Inc of any changes made to this representation thirty (30) days in advance.
CLIENT is purchasing IT Simplicity, Inc under this Agreement for the purchase price outlined in pages 1 and 2. Said purchase price shall be paid in monthly installments with the first installment due upon execution of this agreement. Each payment thereafter shall be due the first day of each calendar month. Services provided hereunder shall be assessed against this Account as provided herein.
CHARGES FOR SERVICE
Services shall be charged against the Account in accordance with the terms and conditions as outlined in pages 3 and 4, and the Rate Card in page 1. Any supplemental services provided by IT Simplicity, Inc which are outside the terms of this Agreement, shall be charged to CLIENT as an additional charge in accordance with the terms and conditions as outlined in page 3 and this agreement. Any additional billing charges will be invoiced at the end of each month, with payment expected within thirty (30) days, unless otherwise specified by IT Simplicity, Inc.
CLIENT shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, federal, state, or otherwise, however designated which are levied or imposed by reason of the services provided pursuant to this Agreement. Without limiting the foregoing, CLIENT shall promptly pay to IT Simplicity, Inc an amount equal to any such taxes actually paid or required to be collected or paid by IT Simplicity, Inc
IT Simplicity, Inc reserves the right to refuse or suspend service under this Agreement in the event CLIENT has failed to pay any invoice within thirty (30) days of said invoice date, whether it is an invoice for services provided under this Agreement or any other agreement between the parties.
WARRANTIES AND DISCLAIMERS
IT Simplicity, Inc makes and the CLIENT receives no warranty, express or implied, and all warranties of merchantability and fitness for a particular purpose are expressly excluded. In no event shall IT Simplicity, Inc or any of its Directors, Employees or Other Representatives be for any special, incidental, indirect, or consequential damages of any kind including, without limitations, those resulting from loss of data, income, profit, and on any theory of liability, arising out of or in connection with the services or use thereof even if it has been advised or has knowledge of the possibility of such damages.
The CLIENT shall assume full responsibility for the overall effectiveness and efficiency of the operating environment in which the Network is to function.
CLIENT hereby agrees to indemnify and defend at its sole expense: IT Simplicity, Inc, its employees, agents, representatives, directors and shareholders, from and against any and all claims arising out of or based upon CLIENT’S use of all services, software or hardware provided or serviced hereunder, including, but not limited to, claims based on software licensing violations, copyright infringement, trademark infringement and patent infringement. In addition, CLIENT agrees to pay any judgment and costs associated with such claim.
IT Simplicity, Inc and/or CLIENT shall have the right to terminate this Agreement under any of the following conditions:
If one of the parties shall be declared insolvent or bankrupt.
If a petition is filed in any court and not dismissed in ninety days to declare one of the parties bankrupt and/or for a reorganization under the Bankruptcy Law or any similar statute
If a Trustee in Bankruptcy or a Receiver or similar entity is appointed for one of the parties
If the CLIENT does not pay IT Simplicity, Inc within thirty (30) days from receipt of IT Simplicity, Inc invoice and/or otherwise materially breaches this Agreement.
If IT Simplicity, Inc fails to perform its obligations under this Agreement and such failure continues for a period of thirty days after written notice of the default, the CLIENT shall have the right to terminate this Agreement.
Either party may terminate this Agreement upon sixty days (60) written notice.
Upon termination, all hardware and software installed by IT Simplicity, Inc that was required to conduct network support services are the property of IT Simplicity, Inc and will be surrendered and returned to IT Simplicity, Inc at end of the agreement.
In the event that the CLIENT terminates this agreement due to a breach by the Service Provider the client shall be entitled to a refund of any monies extended in advance of the month or part thereof for which services by (Service Provider) were last performed.
In the event CLIENT terminates this Agreement for any reason other than a breach of the terms herein,
CLIENT SHALL RESPONSIBLE TO PAY EARLY TERMINATION CHARGES.
Early Termination Charges: Charges that may be imposed by IT Simplicity if, prior to the end of the applicable Service Term (a) IT Simplicity terminates Services for cause or (b) CLIENT terminates any Service without cause. Termination Charges with respect to each Service terminated during the initial Service Term shall equal, in addition to all amounts payable by CLIENT in accordance with page 1, seventy percent (70%) of the remaining monthly fees that would have been payable by CLIENT under the applicable Service Agreement if the terminated Service(s) had been provided until the end of the initial Service Term, and one hundred percent (100%) of any amount paid by IT Simplicity in connection with Hardware and Network Installation, for the Services provided by IT Simplicity under such Service Agreement.
Any undisputed payment not made when due will be subject to a reasonable late charge not to exceed the highest rate allowed by law on the unpaid invoice. If Customer’s account is delinquent, IT Simplicity may refer the account to a collection agency or attorney that may pursue collection of the past due amount and/or any IT Simplicity equipment that CLIENT fails to return in accordance with the Agreement. If IT Simplicity is required to use a collection agency or attorney to collect any amount owed by CLIENT or any unreturned IT Simplicity equipment, CLIENT agrees to pay all reasonable costs of collection or other action. The remedies set forth herein are in addition to and not in limitation of any other rights and remedies available to IT Simplicity under the Agreement or at law or in equity.
INDEPENDENT ENGAGEMENT / NON-HIRE
Because employees are one of our most valuable assets, policy and professional ethics require that our employees not seek employment with, or be offered employment by any CLIENT during the course of engagement and for period of one (1) year thereafter. Your signature on this document confirms your organization’s agreement to adhere to this professional standard of conduct.
CLIENT acknowledges that (Service Provider) is involved in a highly strategic and competitive business. CLIENT further acknowledges that CLIENT would gain substantial benefit and that (Service Provider) would be deprived of such benefit, if CLIENT were to directly hire any personnel employed by (Service Provider) Except as otherwise provided by law, CLIENT shall not, without the prior written consent of (Service Provider), solicit the employment of (Service Provider) personnel during the term of this Agreement and for a period of one (1) year following expiration of this Agreement.
CLIENT agrees that (Service Provider) damages resulting from breach by CLIENT of this provision would be impracticable and that it would be extremely difficult to ascertain the actual amount of damages. Therefore, in the event CLIENT violates this provision, CLIENT shall immediately pay (Service Provider) an amount equal to 50% of employee’s total annual compensation, as liquidated damages and (Service Provider) shall have the option to terminate this Agreement without further notice or liability to CLIENT. The amount of the liquidated damages reflected herein is not intended as a penalty and is reasonably calculated based upon the projected costs (Service Provider) would incur to identify, recruit, hire and train suitable replacements for such personnel.
This Confidentiality, Privacy and Compliance portion of this Agreement is in addition to other terms and conditions set forth in any and all contracts currently existing or hereafter created between CLIENT and (Service Provider). This agreement shall under no circumstances be deemed to alter any such contract except as specifically provided below.
(Service Provider) acknowledges that in the course of providing services to said CLIENT, (Service Provider) may learn from CLIENT certain non-public personal and otherwise confidential information relating to said CLIENT, including its customers, consumers or employees. (Service Provider) shall regard any and all information it receives which in any way relates or pertains to said CLIENT, including its customers, consumers or employees as confidential.
(Service Provider) shall take commercially reasonable steps to not disclose, reveal, copy, sell, transfer, assign, or distribute any part or parts of such information in any form, to any person or entity, or permit any of its employees, agents, or representatives to do so for any purpose other than purposes which serve CLIENT or as expressly and specifically permitted in writing by said CLIENT or as required by applicable law.
Said CLIENT acknowledges that it also has responsibility to keep records and information of its business, customers, consumers, and employees, confidential.
Said CLIENT also acknowledges that all information and services, consulting techniques, proposals, and documents disclosed by (Service Provider) or which comes to its attention during the course of business and provided under this agreement constitute valuable assets of, and confidential and/or proprietary to (Service Provider)
This provision shall survive termination of this Agreement and any other agreements between CLIENT & (Service Provider)
(Service Provider) shall maintain at its sole expense commercial general liability insurance for personal injury and property damage for a general aggregate of $1,000,000; worker’s compensation insurance as required by law; and hired and non-owned automobile liability insurance for the combined single limit of $1,000,000. At CLIENT’s request, (Service Provider) further agrees to furnish CLIENT with certificates, including renewal certificates, evidencing such coverage within thirty (30) days of commencing performance under this Agreement, at every renewal and at other times as may be reasonably requested by CLIENT.
Sole Agreement: This Agreement constitutes the entire and only understanding and agreement between the parties hereto with respect to the subject matter hereof and, except as expressly set forth herein, may be amended only by a writing signed by each of the parties hereto.
Severability: If a court of competent jurisdiction determines that any terms or provision of this Agreement is invalid or unenforceable; such determination shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement, which shall continue to be given full force and effect.
Captions: The captions of the paragraphs of this Agreement are for convenience only and shall not affect in any way the meaning or interpretation of this Agreement or any of the provisions hereof.
Binding Effect: This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their heirs, legal representatives, personal representatives, administrators, successors, and permitted assigns, as the case may be.
Waiver: Any failure of either party to comply with any obligation, covenant, agreement, or condition herein may be expressly waived, but only if such waiver is in writing and signed by the other parties. Any such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement, or conditions shall not operate as a waiver of and/or set precedence with respect to any subsequent and/or other failure.
Governing Law: Notwithstanding the place where this Agreement may be executed by any party, this Agreement, the rights and obligations of the parties, and any claims and disputes relating hereto shall be subject to and governed by the laws of the State of Florida as applied to agreements among residents from any state to be entered into and performed entirely within the State of Florida, and such laws shall govern all aspects of this Agreement. The parties agree to submit to the personal jurisdiction and venue of the state and federal courts in the State of Florida, in the Judicial Circuit where (Service Provider) has its principal office, for resolution of all disputes and causes of action arising out of this Agreement, and the parties hereby waive all questions of personal jurisdiction and venue of such courts, including, without limitation, the claim or defense therein that such courts constitute an inconvenient forum.
Assignment: This Agreement and the rights and duties hereunder shall not be assignable by either party hereto except upon written consent of the other.
Force Majeure: (Service Provider) shall not be liable for any problems due to external causes beyond its control including, but not limited to, terrorist acts, natural catastrophe, fire, flood, or other act of God, and/or power failure, virus propagation, improper shutdown of the Network and related Network Systems/Services.
Attorneys’ Fees. In any action between the parties to enforce any of the terms of this Agreement, the prevailing party shall be entitled to recover all expenses, including reasonable attorneys’ fees.
The Service Provider) shall not be responsible to CLIENT for loss of use of the Network or for any other liabilities arising from alterations, additions, adjustments or repairs which have been made to the Network other than those conducted by authorized representatives of (Service Provider).
For services not explicitly listed in the chart above, CLIENT can assume those services will be BILLABLE and will be subject to (Service Provider’s) bill rates as specified in Appendix C. Possible billable and/or out of scope services include, but are not limited to listed services on page 1 of the Service Agreement
Any additional critical devices or software applications added to the network without the consent or acknowledgement of (Service Provider) will not be honored or supported by (Service Provider) under this agreement.
(Service Provider) reserves the right to renegotiate rates based on additions of locations, hardware, software, hardware support requirements, and/or services as well as modify this Agreement (or any portion thereof) with a 30-day notice.
As such, CLIENT is responsible for informing (Service Provider) of changes to the number of devices within five (5) business days. The monthly pricing will be automatically updated with the addition of any new devices or software applications, and page 5 of the Service Agreement will be updated to reflect the new suite of devices and software applications being covered under this Agreement.
CLIENT will designate a managerial level representative to authorize all Network Support Services. Whenever possible, said representative shall be present whenever a (Service Provider’s) service representative is on-site. It is the CLIENT’s responsibility to inform (Service Provider) of any changes made to this representation thirty (30) days in advance.
Changes to this agreement may only be requested by the persons listed on page 6 and/or signatories of this Agreement. It is the responsibility of the CLIENT to notify (Service Provider) in writing of changes to the contact person or in the event of appointing an account manager.