ARTICLE 1 – GENERAL

Applicability. The terms of this Agreement apply to a) all work that We perform on any hardware, software, equipment, accounts, network, IT system, configuration and infrastructure, and b) all products, services, properties and assets provided to You by Us or procured by Us on Your behalf (collectively, Your “IT Network”).

Client Handbook and IT Policy Manual. By signing this Agreement, You agree to read and abide by the processes, procedures and policies outlined in Our Client Handbook and the IT Policy Manual, copies of which will be emailed to You after signing this Agreement.

Independent Contractor Status. Notwithstanding any provision hereof, it is understood by both Parties that in providing the Services, we are serving as an independent contractor, and are neither an employee nor a partner, joint ventures, or agent of You. With the exception of any licenses obtained by Us on Your behalf pursuant to this Agreement, neither Party shall bind or attempt to bind the other to any contract, and any such contracts entered into in violation of this provision shall be void and unenforceable. You will not provide fringe benefits of any kind to Us or Our members, employees, agents, and other affiliates, including health insurance, retirement, paid vacation, or any other employee benefits. As an independent contractor, we are solely responsible for all taxes, withholdings, and other statutory or contractual obligations of any kind, including but not limited to workers’ compensation insurance. As an Independent Contractor, unless this Agreement or an applicable Service Schedule or Service Order specifically states otherwise, the manner in which the Services are to be performed, including but not limited to the scheduling of individual tasks and the specific hours to be worked by Us or Our employees, contractors and affiliates, shall be determined by Us. It is further understood that as an independent contractor, we may have other clients and may provide any services to any third party during the term of this Agreement.

ARTICLE 2 – TERM AND TERMINATION

Term and Termination. This Agreement begins on the date that it is signed by both parties (“Effective Date”) and will remain in effect for five (5) years (“Commitment Term”) unless it is terminated by either You or Us in compliance with the Termination provisions below. After the expiration of the original Commitment Term, this Agreement will automatically renew for subsequent Commitment Terms of the same duration as the original Commitment Term and will continue until terminated by You or Us as specified in the Termination clause below.

Termination by You. This Agreement may be terminated by You with seven (7) days written notice in the event of a Consultant Default, as defined in this Agreement. In the absence of a Consultant Default, you may terminate this Agreement by providing Us with ninety (90) days’ written notice (“Termination Notice Period”) if:

• We fail to fulfill in any material respect Our obligations under this Agreement and do not cure such failure within thirty (30) days of receipt of written notice by You.
• We breach any material term or condition of this Agreement and fail to remedy such breach within thirty (30) days of receipt of written notice by You.
• We terminate or suspend Our business operations unless it is a permitted delay per the Force Majeure clause below or We are succeeded by a permitted assignee under this Agreement.
• You are not on a Managed Service Plan; or
• You are on a Managed Service Plan, and You are providing Us with 90-day notice of Your intent not to renew this Agreement upon the expiration of the Commitment Term;
• You are on a Managed Service Plan and You wish to terminate this Agreement prior to the expiration of the Commitment Term. By signing this Agreement, You acknowledge that any such termination is only valid and effective if, in addition to providing Us with 90 days’ notice, You also remit payment to Us in the full amount of any Termination Payment due, along with any other outstanding charges payable to Us, no later than the Termination Payment Due Date, as those terms are defined in the paragraph below.

By signing this Agreement, you acknowledge and agree that the pricing for Our Managed Service Plans is a special discounted fixed monthly rate based on the specific promise of a minimum commitment by You to pay all Monthly Managed Service Fees for the entire duration of the applicable Commitment Term. Managed Service Plans are NOT month-to-month subscriptions and are NOT subject to termination at Your convenience without remitting payment of all Monthly Managed Service Fees due for the entire Commitment Term. Accordingly, if Our Services to You include any of the monthly managed services listed in Appendix I under the “Managed Service Plan” heading, You acknowledge and agree that, if You terminate this Agreement before the end of the Commitment Term for any reason other than Our breach or default, You are legally obligated to pay the Monthly Managed Service Fee stated in Appendix II multiplied by the number of months left in the Commitment Term as of the date of your notice of termination (“Termination Payment”), within seven (7) days of the date of Your notice of termination (“Termination Payment Due Date”).

If You terminate this Agreement in accordance with this section, in no event will such termination relieve You of Your obligation to pay all charges incurred under this Agreement or any Service Order prior to such termination.  All Termination requests must be made in writing to 5900 SOM Center Rd, 12-142, Willoughby, OH 44094

Termination by Us. This Agreement may be terminated by Us for any reason upon thirty (30) days’ written notice to You (“Termination Notice Period”). We may terminate this Agreement via written notice to You with immediate effect in the event of non-payment, breach, or other material violation of this Agreement by You.

ARTICLE 3 – SERVICES AND SERVICE ORDERS

Scope of Services. We agree to undertake and provide the Services described in the Service Schedule attached to this Agreement as Appendix I, and as specified in any Service Orders or Service Requests issued by You and approved by Us (collectively, the “Services”), at the fees and rates set forth in Appendix II. While We will always make reasonable efforts to provide support and troubleshoot issues as requested, Our obligations, response times and resolution time frames, if any, apply only to the Services listed in Appendix I, and only to those components of Your IT Network that are part of Our Standard Technology Suite and which meet Our Minimum Technology Requirements, as outlined in the Client Handbook and/or Appendix I.

Requesting Services. The process for lodging service requests is outlined in the Client Handbook, a copy of which will be emailed to You after signing this Agreement. Our Guaranteed Response Times only apply if the appropriate channels and procedures set forth in the Handbook are followed. When requesting a service, you acknowledge that You are solely responsible for the completeness and accuracy of all information provided to Us. Each Ticket, Quote, Service Request and/or Service Order is subject to and incorporates the provisions of this Agreement.

Approval of Quotes and Service Orders. All Quotes and Service Orders are subject to availability and acceptance. Service Orders will be deemed accepted by Us once We either perform the work (such as where the task is included within the scope of a Managed Service Plan) or when We provide You with a confirmation stating a) the term or estimated duration of the Service; b) the pricing, if applicable, including any monthly recurring charges as well as any non-recurring charges such as software, equipment and other costs or expenses payable in addition to Our rates; and c) any additional terms applicable to the Service Order. The Service Order will be deemed accepted by You when a) if the Service is included in a Managed Service Plan or if the reasonable estimated duration of the Service is less than ten (10) hours, when the request for the Service is placed; or b) if the Service is not included within the scope of a Managed Service Plan or the Service is expected to exceed ten (10) hours in duration, once Your duly appointed representative indicates their approval and consent to the Service and the estimated pricing provided by Us.

Service Priority Levels. Determining the priority of an issue is within Our sole discretion; however, to give You an idea of what to expect, priorities are generally assigned as shown in the Client Handbook. If You wish to move a Service Request up to a higher priority than it would normally be assigned, you may request an “Emergency Upgrade” by following the instructions outlined in the Client Handbook. All Emergency Upgrades are treated as Critical Priority Issues and are billed at our emergency rate, separately and in addition to any Monthly Managed Service Fees and other applicable charges. We also reserve the right to amend Our service priority levels by providing You a revised list via the Client Handbook or other similar policy document issued by Us.

Reliance on Appearance of Validity. If any Service Order or Quote approval is signed or sent from an email address associated with You or Your business and/or approved through Your account via Our web-based portal or ordering system, you hereby acknowledge that such Service Orders shall be deemed to be signed and duly authorized by You and may rely upon the apparent validity of same.

Service Order Term. The term of any Service Order will commence on the date specified by Us when accepting the Service Order or on the date that We begin work on the Service and shall continue for the period of time specified in the Service Order or until a) the work under the Service Order has been completed or b) the Service Order has been renewed, cancelled or terminated. For clients not on a Managed Service Plan, we reserve the right to increase rates for any Services provided upon at least fourteen (14) days’ written notice.

Exclusions. By signing this Agreement, You acknowledge and agree that the Services provided by Us do not cover, and We have no liability or obligation with respect to: a) any issues caused by Your use of any equipment, software or service(s) in a way that is not recommended; b) issues resulting from unauthorized changes made to the configuration or setup of Your IT Network; c) issues caused by Your actions or those of Your employees, representatives, or contractors that have prevented or hindered Us in performing required and recommended maintenance upgrades or other Services; d) issues resulting from work performed by You or any of Your contractors other than Us on Your IT Network (“Excluded Services”). Under no event will We be liable for any claims, losses, damages, or expenses relating to issues arising out of such Excluded Services; and any tasks to be performed by Us which relate to such Excluded Services must be requested pursuant to a properly executed Service Order regarding same and will be charged at our Rates specified in Appendix II. Work relating to issues arising out of Excluded Services is not covered under any Managed Service Plan.

Assignment and Outside Contractors. We may engage such persons, corporations or other entities as We reasonably deem necessary for the purpose of performing Services under this Agreement; provided, however, that We shall remain responsible for the performance of all such Services and shall be considered to engage with any third-party persons, corporations or other entities on Our own behalf.

Service Limitations. You acknowledge that the Services provided may reasonably involve trial and error from time to time, and that information technology is a science applied often in novel or unknown circumstances and involving experiment. In particular, You acknowledge that while We will make what We consider (in Our absolute discretion) to be all reasonable endeavours to provide appropriate tests, troubleshooting, sound advice and good recommendations in order to assist You, the Services may involve tests, troubleshooting, advice and recommendations that may prove incorrect or inappropriate, particularly in an attempt to cure a problem You are having.

Reasonable Assistance Limits. We are only obliged to provide what We consider, in Our absolute discretion, to be reasonable assistance in the circumstances. If You require additional Work beyond what We consider to be reasonable assistance, you agree that such additional Work will be billed at Our Hourly Rates set forth in Appendix II unless otherwise agreed. Without limiting Our discretion to determine what “reasonable assistance” means under any particular set of circumstances, in general, reasonable assistance is limited to work done during Business Hours over a period of time not exceeding any period that We have estimated the Work to take based on our experience and our knowledge of the facts and circumstances at the time we agreed to perform the Work.

Standard Technology Suite. In order to make sure we can deliver quality service, we constantly work towards helping all our clients use the technology we know, trust and love the most – We call this our “Standard Technology Suit” or “STS”, the details of which are outlined in the Client Handbook. When entering into a Service Agreement with Us, you promise to cooperate with Us as much as practicable for Your business in adopting as much of Our STS as possible. This benefits all parties, as We always strive to keep updated on all components of Our STS and deepen our knowledge on everything in our STS in order to keep Your IT Infrastructure high quality, well-integrated, and fast to troubleshoot and support.

While it is possible that We may be able to purchase and integrate hardware and software that are not listed in Our STS, any tasks involving the installation, setup, maintenance, servicing, and support of those products is outside of the scope of any Managed Service Plan, and is billed hourly, at the rates outlined in Appendix II.

Other Third Party Goods and Services. At times, you may specifically request, or We may recommend the purchase of third-party goods or services outside of our STS in situations where some function sought may not be fulfilled by our STS. You acknowledge that We have no control over many factors involved with the suitability, function, or fitness for purpose of goods in an existing or new computer environment, such as the compatibility or ability of the goods to fit into or perform to expectations in the receiving environment, or the behaviour of any third-party supplier. For many reasons outside of Our control, sometimes goods may fail to meet Your expectations, may not turn out to be fit for the purpose(s) sought, or may not function properly in all or any respects. Because such issues are to be expected when implementing any new technology in any environment, by signing this Agreement You agree to hold us harmless from any claims for losses, expenses, injuries or other damages should a product not meet your expectations.

Testing Procedures. You agree to follow Our instructions with regard to testing or troubleshooting any problems and that if those efforts do not resolve the outstanding issues, we will, subject to this Agreement, allocate such resources as We consider reasonable in the circumstances towards their resolution.

Substitute Products. If We cannot supply the products ordered by You, we may supply alternate products of equal or superior quality.

Suspension or Termination of Services for Non-Payment. In the event of a Payment Default by You, we may, in Our absolute discretion, with immediate effect and without prior notice, suspend or terminate any or all Services provided by Us to You. This includes Our right and ability to cease performing any work under the Master Service Agreement or any Service Order, and to cancel, terminate and permanently delete any subscriptions, accounts, licenses and permissions managed, maintained and/or paid for by Us on Your behalf (“Managed Accounts”), including but not limited to any third-party vendor accounts and any and all user licenses, credentials, data, and information associated therewith, which may all be deactivated, permanently deleted and/or unrecoverable. By signing this Agreement, you hereby expressly agree that We shall not be liable for any losses or damages arising out of such suspension, cancellation or termination of Managed Accounts.

ARTICLE 4 – SOFTWARE

Licenses and Indemnity. We will not install unlicensed software. Each software that is purchased and/or installed shall be accompanied by a valid license agreement. You are solely responsible for the retention of the license documentation. We will provide You with all licenses and warranty information provided by third party suppliers of all software purchased by Us on Your behalf. Unless expressly agreed upon by Us in writing otherwise, it is at all times exclusively Your duty and responsibility to adhere to all licensing rules applicable to any software on Your IT Network, and to store all licenses for all software used by You, so that that they can be reproduced if and when required. This includes all Software installed by Us.

Breach or Unauthorized Use. You agree to indemnify and hold Us and each of Our members, shareholders, successors, assigns, directors, officers, employees, agents and subcontractors (the “Released Parties”) harmless from and against any and all liabilities, claims, causes of action, lawsuits and/or demands of whatever kind or nature, either in law or equity, including all direct, indirect, incidental, special or consequential damages (including without limitation, damages for interruption of services, loss of business, loss of profits, loss of revenue, loss of date, or loss or increased expense of use client or any third party incurs), as well as any and all other claims, whether in an action in contract, warranty, tort (including without limitation, negligence), or strict liability, which arise out of or are in any way related, directly or indirectly, to a) any unauthorized software use by You or your employees, directors and officers, agents, representatives and contractors, b) any breach of any software license in respect of software provided to Us by You to be installed on one or more of Your computers or equipment, c) otherwise as a result of Us installing Software at Your direction and supplied by You where You are not authorised to use the Software, or d) any problem, defect or malfunction associated with any software (or related services) supplied by third parties.

Power of Attorney. If You request Us to procure software licenses on Your behalf, you agree and irrevocably appoint Us as Power of Attorney to accept terms and conditions or end user license agreement (EULA) for any and all Software requested installed by You. This enables Us to thoroughly ensure the proper acquisition, installation, and usage of all necessary Software for Your specific purpose and IT set up.

Copyright. All copyright in custom software owned by Us remains the sole property of Ours or its owner unless alternate arrangements are made as part of a separate software agreement.

ARTICLE 5 – RETURNS, REFUNDS AND CLAIMS

General Returns, Refunds & Cancellation Policy. We do not keep inventory on hand but instead order items once We receive a Service Order or an approval of a Quote from You. As a result, If You terminate or cancel a Service Order prior to the expiration of its Term, You will be responsible for all costs and expenses incurred by Us pursuant to the Service Order, including any and all software, equipment, third party contractor labor, subscription, installation and special construction costs, and any and all other costs and other fees incurred by Us as a result of the Service, in addition to any applicable Cancellation Fee. If You request to return an item for which We already placed the order, You acknowledge that a) if the item is returnable to the manufacturer or supplier, a restocking fee determined at the time of the return/cancellation request may apply; and b) if We do not receive written approval from the manufacturer or supplier that Your item is returnable, We will not be able to issue refunds for any such item.

Customised Goods Not Returnable. Where the hardware and equipment We supply have any element of customisation for You, or are supplied pursuant to an order that is in Our determination special or unusual, the goods are obtained from overseas or from a supplier who is no longer trading, or are otherwise not readily returnable by Us to the manufacturer or supplier or any related services may not be cancelled, the goods are not eligible for return.

You further acknowledge that Services provided by Us that involve the task of customising goods for particular purposes may involve substantial labor outside of the scope of any of our Managed Service Plans. All such work will be payable pursuant to Our Hourly Rates set forth in Appendix II, and must be paid on time, in full, without any offset or claim, whether or not We are able to achieve the desired purposes, suitability or function, provided that We have acted in good faith and have made what We consider to be all reasonable endeavours to achieve those outcomes.

Duty to Inspect; Limited Returns. You agree to inspect all products received by You immediately upon their delivery. You have 7 days from the date of delivery to provide Us with written notice of Your request to return or exchange any product. Your notice must include one of the following reasons for your request: a) the products are damaged or faulty; b) You were supplied with the incorrect product; or c) the quality of the product is materially lower than what was represented. If no such notice is given on time, you shall be deemed to have accepted the products and have waived the right to any return or refund. If notice is timely provided, we will assist You in attempting to obtain a refund or exchange from the supplier or manufacturer of the product, subject to the provisions and limitations set forth in this Section. You will be responsible for payment of all costs and expenses incurred by Us in having any products shipped to You and in arranging the return of the products to a manufacturer or supplier.

Consequences of use, installation, customization, or sale. You agree to indemnify and hold Us harmless with respect to any allegations and claims relating to any products that have been used, installed, customised, changed, donated, or re-sold by You.

Refunds and Cancellations of Services. The fees paid or payable for Services already rendered by Us are non-refundable. On projects performed pursuant to a pre-determined fixed fee or quote, refunds and cancellations may be requested, and partial refunds may be issued at Our discretion, subject to an administrative and cancellation fee of 15% of the fees specified in the mutually agreed/accepted Quote or Service Order or up to $750.00, whichever is greater. The foregoing cancellation fees are on top of and in addition to any costs and expenses We may have incurred in ordering hardware, equipment, software licenses, third party contractor labor, and other expenses which cannot be cancelled and must be paid in full.

ARTICLE 6 – EQUIPMENT SUPPLIED BY US

Hardware As A Service (HAAS). If You are on Our Hardware as A Service (HaaS) Plan, the terms and conditions set forth in Appendix IV apply.

Ownership of Equipment. You agree that all equipment listed in Appendix I, and all other equipment, hardware and tools provided by Us to You at any time (“Supplied Equipment”) will remain Our sole property, unless the purchase price of same was invoiced to and/or paid by You. 

Servicing of Equipment. You agree and understand that all Supplied Equipment is to be serviced and maintained solely by Us. You will not attempt to sell, re-sell, loan, rent out, tamper, troubleshoot, repair, move, alter, modify, add to, or perform any other action to any Supplied Equipment, or permit any third party to do so, without Our express written permission (“Prohibited Actions”).  Any Prohibited Actions shall constitute a material breach of this Agreement and shall render same subject to immediate termination by Us without any refund to You. Any issues arising out of or relating to any Prohibited Actions are specifically excluded from all Managed Service Plans and shall be handled at Our Hourly Rates set forth in Appendix II.

Return of Equipment. If this Agreement is terminated, you hereby agree to return all Supplied Equipment to Us within 10 days following the date of termination (“Equipment Return Deadline”) or pay Us an Equipment Transfer Fee in the amount of 80% of the price for which We purchased the Supplied Equipment no later than the Equipment Return Deadline. 

If You do not return all Supplied Equipment to Us or make payment in the full amount due to keep the Supplied Equipment by the end of the Equipment Return Deadline, we may enter Your premises at any time during regular business hours, with or without permission, and take possession of all Supplied Equipment. All such efforts to recover Supplied Equipment will be deemed consensual and not a trespass. You agree to fully cooperate with the removal of all of Supplied Equipment, and will not interfere in any way, including but not limited to involving law enforcement. You agree to compensate Us for any expenses accrued as a result of having to recover Supplied Equipment, in addition to any amounts owed by You under the Master Service Agreement or any applicable Statement of Work, Service Order or other agreement between You and Us.   You further acknowledge that if Supplied Equipment is purchased by You rather than returned to Us, then management of said equipment, as well as renewing and maintaining any associated licenses following the expiration of the current license on same, will be Your responsibility.

Protection of Equipment. You agree to make all logical and earnest attempts to keep all Supplied Equipment safe, secure, and protected while in Your possession.  You agree to keep current insurance on all of Supplied Equipment while same is in Your possession and to list Us as an additional loss payee on any policy covering Supplied Equipment. You will provide proof of insurance and additional loss payee status to Us in the form of a current copy of Your insurance declaration sheet showing Us as a loss payee for all relevant coverages, including mobile equipment coverage.  You further agree to be responsible for any and all costs for the repair or replacement of Supplied Equipment while in Your possession should it be damaged, altered, repaired or tampered with by an unauthorized party and/or in an unauthorized manner. 

ARTICLE 7 – YOUR RESPONSIBILITIES

Client Handbook and IT Policy Manual. By signing this Agreement, you agree to read and abide by the processes, procedures and policies outlined in the Client Handbook and the IT Policy Manual, copies of which will be emailed to You after signing of this Agreement in the form of a PDF document or an online link. We will provide Your team with Scheduled Security Training(s) on the requirements and best practices outlined in the IT Policy Manual during Orientation and Onboarding; however, should any personnel require additional training or clarification, you agree to contact us so that We can provide the requisite assistance.

Using Products and Services Only as Intended. In order for Us to be able to provide the Services in a timely and effective manner, you agree to use Your IT Network, and all components thereof only as intended and advised by Us.

Updates, Communication and Timely Notification of Issues. You agree to notify Us of any issues or problems with Your IT Network or any component thereof in a timely manner, so that We can maximize Our chances to address problems and issues before they escalate and get out of hand. You further agree to keep Us informed about potential changes to Your IT Network and maintain good and prompt communication with Us at all times.

Lodging of Service Requests. In order for Us to provide You with the agreed Service, you agree to follow Our process for lodging of Service Requests as outlined in this Agreement, the Client Handbook, the IT Policy Manual or other similar document which We may issue from time to time regarding Our policies, procedures and processes.

Access to Systems, Sites and People. In order to provide You with the agreed Services, you agree to give Us access to Your IT Network, as well as Your personnel, sites, and other items as and when requested by Us for the purposes of maintenance, updates and fault prevention. You agree to allow Us to install software on Your Equipment that allows Our technicians to access, monitor and/or make changes to Your systems at any time. Among other things, this type of software will allow Us to view system statuses, send and receive monitoring information, see users’ desktops, and control Your PCs. If the performance of Our work requires that You leave devices powered on overnight or weekends, you agree to do so upon Our request.

Third Party Authorizations. At times We may need to contact Your third-party providers on Your behalf, such as Your internet provider. Some of these providers may require Your authorization to deal with Us on Your behalf. It is Your responsibility to ensure that We are able to deal freely with these providers. A sample letter to providers is attached to this Agreement in order to assist with the timely obtaining of all required authorizations.

Limitation of Liability. By signing this Agreement, you acknowledge and agree that We shall not be liable for any loss, damage, injury, claim, expense or liability resulting from Your failure to follow the above requirements of this Article.

ARTICLE 8 – BILLING AND PAYMENTS

Charges and Billing. You shall pay all Charges for the Services as specified in Appendix II. Monthly recurring charges, including but not limited to Monthly Managed Service Fees and any additional recurring subscriptions or license fees (“MRC”) are payable in advance via ACH. All charges shall be payable in U.S. Dollars. Invoices are payable no later than thirty (30) days from the invoice date (“Due Date”) and shall be exclusive of any applicable taxes.  Hardware and Software must be purchased before it is ordered.

“Charges” means the fees, rates, costs, expenses and charges for the goods and Services provided by Us, as specified in Appendix I and/or the applicable Service Order. Unless otherwise agreed to by the Parties in writing, Charges for each Service Order shall begin to accrue on the date that work on the Service is commenced by Us. Charges for the Services are subject to change at any time if third party charges in connection with a Service are increased or newly charged to Us.

Late Payments. If You are late in making payment, you shall pay a late fee on any late payments at the lesser of one and a half percent (1.5%) per month or the maximum rate allowed by applicable law. If We use a collection agency or attorney to collect a late payment or returned payment, you agree to pay all reasonable costs of collection or other action. These remedies are in addition to and not in limitation of any other rights and remedies available to Us under the Agreement, at law or in equity.

Taxes and Other Fees. All Charges for the Services are exclusive of any taxes and other fees and surcharges. You shall be responsible for payment of all applicable taxes that arise in any jurisdiction, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, and bypass (“Taxes”).

Invoice Disputes. To the extent that You dispute any portion of an invoice in good faith, you shall notify Us in writing and provide detailed documentation supporting Your dispute within thirty (30) days of the invoice date; otherwise, your right to any billing adjustment shall be waived. In the event of a billing dispute, you shall timely pay all undisputed amounts. If the dispute is resolved against You, you shall pay all amounts due plus interest from the original Due Date. You may not offset disputed amounts from one invoice against payments due on the same or another account or invoice.

Changes and Fee Estimates. Our Hourly Rates and Monthly Managed Service Fees are subject to change by Us at the expiration of any Commitment Term. Any fee estimates provided by Us at Your request are for informational purposes only and may differ from the rate(s) ultimately payable by You pursuant to a subsequent invoice, Service Order or Service Schedule.

Refunds and Cancellations. The fees charged under this Agreement are non-refundable. No refunds will be given after We have commenced work pursuant to this Agreement or any Service Order or Service Schedule.

ARTICLE 9 – LIMITED WARRANTY

Limited Warranty. We warrant, for a period of thirty (30) days following delivery of any Services hereunder (the “Warranty Period”) that all Services will be performed in a professional manner and in accordance with generally applicable industry standards. Our sole liability (and your exclusive remedy) for any breach of this Warranty shall be for Us to re-perform any deficient Services, or, if We are unable to remedy such deficiency within fifteen (15) days of being notified of same, to void the invoice for the deficient Services. We shall have no obligation with respect to any Warranty claim if (1) We are notified of such claim after the Warranty Period, or (2) the claim is the result of third-party hardware of software; Your actions, including those of Your employees, agents, members, representatives, affiliates and contractors; the actions or omissions of any person or entity not under Our direct supervision or control; or (3) the claim is otherwise caused by factors outside Our reasonable control.

THIS SECTION IS A LIMITED WARRANTY AND SETS FORTH THE ONLY WARRANTIES MADE BY US. WE MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER WRITTEN OR ORAL, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, WITH RESPECT TO ANY GOODS AND/OR SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF RELIABILITY, USEFULNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM THE COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE, OR ANY WARRANTIES REGARDING THE PERFORMANCE OF ANY SOFTWARE OR HARDWARE PROVIDED OR INSTALLED BY US. YOU MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE WARRANTY PERIOD.

Upon Your request, we will pass along to the You any third-party warranties relating to any goods purchased and/or installed by Us.

ARTICLE 10 – INDEMNITY & LIMITATION OF LIABILITY

Aggregate Limit of Liability. You understand and agree that We shall not be liable for any indirect, incidental, special or consequential damages (including without limitation, damages for interruption of services, loss of business, loss of profits, loss of revenue, loss of date, or loss or increased expense of use client or any third party incurs), whether in an action in contract, warranty, tort (including without limitation, negligence), or strict liability, even if We have been advised of the possibility of such liabilities. We shall not be responsible for any problems which may occur as a result of the use of any third-party software or hardware.  In no event shall the aggregate amount You may recover from Us under this Agreement for any and all losses, damages, injuries, claims, or expenses (collectively, “Loss”), arising out of or in any way related to the Services and/or this Agreement, from any cause or causes, including but not limited to Our negligence, errors, omissions, strict liability, breach of contract or breach of warranty, exceed the total payments made to Us by You pursuant to this Agreement in the five (5) months immediately preceding the alleged Loss. The foregoing sum represents Our total liability for all of Your claims. The limitations set forth in this section shall not apply to personal injury or damage to tangible property caused by Our willful misconduct.

Cyber Security Testing. You understand the serious implications to Your business of malicious emails and/or websites designed to obtain sensitive data (“phishing”). As part of managing this risk, you allow and authorize Us to create simulated phishing emails and/or webpages to be sent to Your business environment, without advance notice to You, in order to determine Your security weaknesses. These simulated attacks help clients understand the different forms a phishing attack can take, identifying features, and avoid clicking malicious links or leaking sensitive data in malicious forms, in addition to assisting Us in improving Your cybersecurity.

Cybersecurity Breach Waiver of Liability. You agree that You will monitor and test Your data safeguards from time to time, and to adjust Your data safeguards from time to time in light of relevant circumstances, the results of any relevant testing or monitoring, or at Our recommendation. If You suspect or become aware of any unauthorized access to any of Your data by any unauthorized person or third party or become aware of any other security breach relating to Your data (“Data Breach”), You shall immediately notify Us in writing and shall fully cooperate with Us at Your expense to prevent or stop such Data Breach.  In the event of a Data Breach, you shall fully and immediately comply with applicable laws and shall take the appropriate steps to remedy such Data Breach. YOU HEREBY WAIVE AND RELEASE US FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, CAUSES OF ACTION, LIABILITY, LOSS, COSTS, EXPENSES AND DAMAGES, INCLUDING INDIRECT OR INCIDENTAL DAMAGES, AND INCLUDING REASONABLE  ATTORNEY FEES, ARISING OUT OF OR RELATING TO ANY DATA BREACH, AND WILL DEFEND, INDEMNIFY AND HOLD US, OUR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, CAUSES OF ACTION, LIABILITY, LOSS, COSTS AND DAMAGES, INCLUDING REASONABLE ATTORNEY FEES, ARISING OUT OF OR RELATING TO ANY THIRD PARTY CLAIM ARISING FROM ANY DATA BREACH.

E-Mail Backup, Storage and Data Retention. Unless You are receiving email backup and archiving services under the Managed Service Plan section of Appendix I, Our Email Services do not include any archive or backup services. If these services are not included within the Services rendered to You, then it is Your sole and exclusive responsibility to maintain independent backups of Your email messages at all times. You acknowledge and agree that We shall have no liability to You or any third party for any loss, damage, or destruction of Your email messages, contacts, distribution lists, or other data or content stored in connection with any email accounts or services. Upon request, we can assist You in setting up a backup service with a third party of Your choice. You understand that if You request any email account to be deleted, that any data from that account will not be recoverable. It is Your responsibility to request Us to backup any data before deleting the account. Our Standard rates will be charged for any time spent setting up backup services and creating a copy of a mailbox. At any time, you may request in writing for Us to provide a list of all email accounts charged to the You for review.

WE WILL NOT BE LIABLE FOR ANY (a) SUSPENSION OR LOSS OF THE EMAIL SERVICE, (b) USE OF THE EMAIL SERVICE, (c) INTERRUPTION OF THE EMAIL SERVICE OR INTERRUPTION OF YOUR BUSINESS, (d) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE EMAIL SERVICE; (e) LOSS OR LIABILITY RESULTING FROM ACTS OF OR EVENTS BEYOND OUR CONTROL (f) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (g) LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT OR PASSWORD; OR (h) APPLICATION OF ANY DISPUTE POLICY. WE WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (“EMAIL LOSSES”). IN NO EVENT SHALL OUR MAXIMUM AGGREGATE LIABILITY FOR ANY EMAIL LOSSES EXCEED $1,000. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

Declined Services. We may, from time to time, recommend additional products, services and/or managed IT/security solutions designed to improve Your overall IT Network and security platform or address specific developments in the field of information technology or cybersecurity. We may also recommend additional products and services in response to a change in Your business, users, or operations that in Our opinion necessitates or is reasonably served by an upgrade or modification of the products and services being provided.

While We strive to evolve Our technology platform and services to accommodate new developments at minimal inconvenience to Our clients, adding new products and services does entail additional charges and fees, including but not limited to setup fees, equipment charges, new/additional licensing and software subscription fees, ongoing management fees, and more.

All recommendations made by Us are made with Your best interest in mind, in terms of network efficiency, integration, fast and effective troubleshooting, and reducing information technology / cybersecurity risks.

While You are always free to elect not to follow Our recommendations, if You refuse a recommended product or service on account of cost, or for any other reason, you agree that by doing so, you fully accept all risks associated with not following Our recommendations. You further agree to release, indemnify and hold Us harmless from and against any and all liabilities, claims, causes of action, lawsuits and/or demands of whatever kind or nature, either in law or equity, including all direct, indirect, incidental, special or consequential damages (including without limitation, damages for interruption of services, loss of business, loss of profits, loss of revenue, loss of date, or loss or increased expense of use client or any third party incurs), as well as any and all other claims, whether in an action in contract, warranty, tort (including without limitation, negligence), or strict liability, which arise out of or are in any way related, directly or indirectly, to any hardware or software which We advised you to change or upgrade, or any other decision by You to not follow Our recommendations with regard to improving Your IT Network. If a cybersecurity/data breach, data loss or other damage occurs involving any hardware, software or equipment which We recommended to be upgraded or replaced, You accept full responsibility for remediating any such loss, breach or damage, and further accept and agree that all labor to repair any damage or otherwise handle any issues associated with such loss, breach or damage will not be covered under any Managed Service Plan and will be charged to You at Our Hourly Rates set forth in Appendix II.

You agree to not hold Us responsible or legally liable for the Your decision to not follow Our recommendations and/or any future consequences relating to or arising out of that decision.

Release and Indemnification. Subject to the limitations set forth in this Agreement, including the Limited Warranty and Limitation of Liability articles above, each Party (“Indemnifying Party”) agrees to release, indemnify, defend and hold harmless the other Party, its directors, officers, employees, and agents, successors and assigns (“Indemnified Party”), from and against all claims, losses, expenses, fees, damages and liabilities, including reasonable attorney fees and disbursements, costs, and judgments, sustained in any action commenced by any third party in connection with the Indemnifying Party’s performance of, or failure to perform, its obligations and duties under this Agreement, except for those damages, costs, expenses and liabilities arising from the negligence or willful misconduct of the Indemnified Party; provided, however, that We are not obligated to indemnify You, and You shall defend and indemnify Us hereunder, for any claims by any third party, including any clients and/or customers of You, arising from services provided by You that use, incorporate or otherwise involve any of the Services being provided by Us hereunder, including but not limited to (a) the violation of any applicable law by the You or the Your clients and/or customers; (b) damage to property or personal injury (including death) arising out of the acts or omissions of Your clients and/or customers; (c) termination or suspension of Services of You or Your clients and/or customers due to a You Default; or (d) claims by any third party, including without limitation Your clients and/or customers, arising out of or related to the use or misuse of any Service. In all claims for Indemnity under this paragraph, the Indemnifying Party’s obligation shall be calculated on a comparative basis of fault and responsibility.  Neither party shall be obligated to indemnify the other in any manner whatsoever for claims, losses, expenses, or damages resulting from the other party’s own negligence.

Indemnification Procedures. The Indemnified Party shall promptly notify the Indemnifying Party in writing of any such suit or claim and shall take such action as may be necessary to avoid default or other adverse consequences in connection with such claim. The Indemnifying Party shall have the right to select counsel and to control the defense and settlement of such claim; provided, however, that the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in handling the claim, and provided further, that the Indemnifying Party shall not take any action in defense or settlement of the claim that would negatively impact the Indemnified Party. The Indemnified Party shall provide cooperation and participation of its personnel as required for the defense at the cost and expense of the Indemnifying Party.

ARTICLE 11 – INSURANCE

Insurance. We will carry and shall cause Our subcontractors to maintain, comprehensive liability insurance including general liability, errors and omissions, and workers compensation coverage, in commercially reasonable amounts, calculated to protect both Parties from the consequences of losses and damages that may arise from activities performed under or facilitated by this Agreement. We agree to provide satisfactory proof of insurance upon request, and to immediately notify You in writing of any lapse, cancellation, or modification of the insurance coverage required herein.

Cyber-Liability Insurance. We agree to purchase and maintain, throughout the term of this Agreement, a technology/professional liability insurance policy, including coverage for network security/data protection liability insurance (also called “cyber liability”) covering liabilities for financial loss resulting or arising from acts, errors, or omissions, in rendering technology/professional services or in connection with the specific services described in this Agreement, including the following:

• Violation or infringement of any right of privacy, including breach of security and breach of security/privacy laws, rules or regulations globally, now or hereinafter constituted or amended.
• Data theft, damage, unauthorized disclosure, destruction, or corruption, including without limitation, unauthorized access, unauthorized use, identity theft, theft of personally identifiable information or confidential corporate information in whatever form, transmission of a computer virus or other type of malicious code; and participation in a denial-of-service attack on third party computer systems.
• Loss or denial of service; and other coverages We deem reasonably necessary in connection with the type of Services being provided hereunder.
• Technology/professional liability, breach of contract, privacy and security liability, regulatory privacy defense and payment of civil fines, payment of credit card provider penalties, and breach response costs.

ARTICLE 12 – CONFIDENTIALITY AND DATA PROTECTION

Confidentiality. Each Party acknowledges that, in connection with this Agreement, it may be furnished with, or given access to, certain confidential and/or proprietary information of the other Party, and that, subject to the provisions of his section, such information shall not be disclosed by the Party receiving the information to any third party, and shall not be used by either Party for purposes other than those contemplated by this Agreement.

Information Subject to Confidentiality. Confidential Information may include, but is not limited to, the following:

• Any materials regardless of form furnished by either Party to the other for use.
• Any information furnished by any Party that is stamped “confidential,” “proprietary,” or with a similar legend, or any information that any Party makes similar reasonable efforts to maintain secret.
• Any business or marketing plans, strategies, customer lists, operating procedures, design formulas, know-how, processes, programs, software, inventories, discoveries, improvements of any kind, sales projections, strategies, pricing information; and other confidential trade secrets, data and knowledge of either Party.
• Any information belonging to employees, agents, members, shareholders, owners, customers, suppliers, vendors, contractors, business partners and affiliates of either Party.
• Any non-public inventions the rights to which have not been assigned to the Party receiving the information.
• Any non-public and proprietary technical information belonging to either Party, the rights to which have not been assigned to the party receiving the information.
• Our Standard Technology Suite; Total-CARE or Secure-CARE
• And other proprietary information owned by either Party which are valuable, special and/or unique assets of that Party.

Any templates, schematics, processes, or any technical documentation provided by Us shall be deemed Our Confidential Information and proprietary information without any marking or further designation. You may use such information solely for Your own internal business purposes.

We shall maintain the confidentiality of information in Our possession regarding individual protected health information in accordance with applicable law and shall not release such information to any other person or entity, except as required by law.

Non-Disclosure. Neither Party will disclose or use, either during or after the term of this Agreement, in any manner, directly or indirectly, any Confidential Information of the other Party, for their own benefit or the benefit of any third party. Neither Party will use, share, divulge, disclose, or communicate in any manner whatsoever any Confidential Information to any third party without the prior written consent of the other Party, except to the extent specifically permitted under this Agreement.

Both Parties will protect all Confidential Information of the other, and will treat it as strictly confidential, unless and until: a) said information becomes known to third parties not under any obligation of confidentiality to the party whose confidential information is at issue (“Disclosing Party”), or becomes publicly known through no fault of the other party (the “Receiving Party”); or b) said information was already in the Receiving Party’s possession prior to its disclosure, except in cases where the information has been covered by a preexisting Confidentiality Agreement; or c) said information is subsequently disclosed by a third party not under any obligation of confidentiality to the Disclosing Party; or d) said information is approved for disclosure by prior written consent of the Disclosing Party; or e) said information is required to be disclosed by court order or governmental law or regulation, provided that the Receiving Party gives the Disclosing Party prompt notice of any such requirement and cooperates with the Disclosing Party in attempting to limit such disclosure; or f) said information is proven independently developed by the Receiving Party without recourse or access to the information; or g) disclosure is required in order for a party to comply with its obligations under this Agreement, provided that prior to disclosure, the Receiving Party gives the Disclosing Party prompt notice of any such requirement and cooperates with the Disclosing Party in attempting to limit such disclosure.

A violation of this Section shall be a material violation of this Agreement.

Employees and Agents. The Parties further agree to disclose the Confidential Information to their officers, directors, employees, contractors and agents (collectively, the “Agents”) solely on a need-to-know basis and represent that such Agents have signed appropriate non-disclosure agreements and/or that the Party receiving Confidential Information has taken appropriate measures imposing on such Agents a duty to (1) hold any Confidential Information received by such Agents in the strictest confidence, (2) not to disclose such Confidential Information to any third party, and (3) not to use such Confidential Information for the benefit of anyone other than the party to whom it belongs, without the prior express written authorization of the party disclosing same.

Unauthorized Disclosure of Confidential Information.  If either party to this Agreement discloses or threatens to disclose the other party’s Confidential Information to another party or to the Disclosing Party’s detriment or damage, in violation of this Agreement, the party whose information is at issue will suffer irreparable damage and shall be entitled to an award by any court of competent jurisdiction of a temporary restraining order and/or preliminary injunction to restrain the other party from such unauthorized use or disclosure, in whole or in part, of such Confidential Information, without the need to post a bond, and/or from providing services to any party to whom such information has been disclosed or may be disclosed.

The infringing party further agrees to reimburse the Disclosing Party for any loss or expense incurred as a result of the infringement, including but not limited to court costs and reasonable attorney fees incurred by the Disclosing Party in enforcing the provisions of this Agreement, in addition to any other damages which may be proven. The parties shall not be prohibited by this provision from pursuing other remedies, including a claim for losses and damages.

Data Protection. We may have access to Your computer and communications systems and networks for the purposes set forth in this Agreement.  If any data is made available or accessible to Us or Our employees, agents or contractors, which pertains to Your business or financial affairs or to Your projects, transactions, clients, customers, partners, vendors or any other person or entity, We will not store, copy, analyze, monitor or otherwise use that data except for the purposes set forth in this Agreement and any valid Service Schedule or Service Order. We will comply fully with all applicable laws, regulations, and government orders relating to personally identifiable information (“PII”) and data privacy with respect to any such data that We receive or have access to under this Agreement or in connection with the performance of any Services for You.  We will otherwise protect PII and will not use, disclose, or transfer such PII except as necessary to perform under this Agreement or as specifically authorized by the data subject or in accordance with applicable law.  To the extent that We receive PII related to the performance of this Agreement, we will protect the privacy and legal rights of Your personnel, clients, customers and contractors.

ARTICLE 13 – NON-SOLICITATION

Non-Solicitation of Personnel. You agree that, as long as this Agreement is in effect, and for twelve (12) months following termination of same, You may not, directly or indirectly, individually or on behalf of any person or entity, solicit or contact any employee, contractor, vendor, supplier, affiliate or business partner of Ours (“Business Personnel”) with a view to inducing or encouraging such Business Personnel to discontinue, curtail or not engage in any business relationship with Us. You further agree that You will not request, advise, induce, aid, endeavor, or influence any of Our established Business Personnel to withdraw, curtail or terminate its business with Us.

Injunctive Relief.  You hereby acknowledge that 1) if You violate any of Your duties under this Agreement, we may suffer irreparable damage; and 2) that monetary damages will be inadequate to compensate Us for such damage resulting from the breach. Therefore, in the event of a breach, we shall be entitled to seek injunctive relief and/or preliminary injunction against You, without the need to post a bond, in addition to any other remedies at law or equity, to enforce such provisions.

ARTICLE 14 – DEFAULT

Default by You. You are in default of this MSA if You (a) fail to cure any monetary breach within ten (10) days of receiving notice of the breach from Us; (b) fail to cure any non-monetary breach of any terms of this Agreement or applicable Service Order within fifteen (15) days of receiving notice of the breach from Us; or (c) file or initiate proceedings or have proceedings filed or initiated against You seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or other similar law (each such event shall be a “Client Default”).

In the event of a Client Default, we may suspend Services to You until You remedy the Client Default, or We may terminate this Agreement and/or any or all of the Services being provided hereunder with immediate effect and without penalty or obligation to issue any refund. We may at Our sole option, but without any obligation, cure a non-monetary breach at Your expense at any point and invoice You for the same. These remedies are in addition to and not a substitute for all other remedies contained in this Agreement or available to Us at law or in equity.

Default by Us.  We are in default of this Agreement if We fail to cure any non-monetary breach of any material term of this Agreement within thirty (30) days of receiving written notice of the breach from You (“Consultant Default”); provided, however, that You expressly acknowledge that malfunctioning of hardware, software and equipment, other service-related failure or degradation in performance, and issues caused by events and circumstances beyond Our control are not subject to a claim of a Consultant Default. Your sole and exclusive remedy for any failure of Service is limited to the remedies set forth in this Agreement. In the event of a Consultant Default, you may terminate the Services and this Agreement upon seven (7) days’ written notice to Us. Any termination shall not relieve You of Your obligations to pay all charges incurred hereunder prior to such termination.

ARTICLE 15 – OFFBOARDING

Offboarding Assistance. If either Party terminates this Agreement, we will make our team available to provide You with assistance in the orderly termination or transfer of the services to another designated provider (“Offboarding Assistance”). If You are on a Managed Service Plan, we will render up to ten (10) hours of Offboarding Assistance free of charge. If You are not on a Managed Service Plan, Offboarding Assistance is available at Our Hourly Rates set forth in Appendix II. The availability of Offboarding Assistance is conditioned upon all of the following requirements being met no less than fourteen (14) calendar days prior to the expiration of the applicable Termination Notice Period, or if this Agreement is being terminated with immediate effect, no later than seven (7) calendar days following the date of the notice of termination (“Offboarding Assistance Request Deadline”):

1. You complete and return to Us the Offboarding Assistance Request Form provided to You in the Client Handbook, or any other similar form We may request You to complete that lists Your duties, acknowledgements and releases, cutoff dates, and the specific services that are being terminated;
2. If You are not on a Managed Service Plan, you submit payment in advance for the first ten (10) hours of Offboarding Assistance at our regular Hourly Rates;
3. If You request transfer of services to a new IT service provider, then the new provider is designated, and their contact information is supplied to Us on the Request to Cancel Services Form.
4. You return or pay for all Supplied Equipment being used on Your premises, unless ownership of same has been transferred to You pursuant to the terms of this Agreement.
5. You remit payment for all amounts payable to Us under this Agreement or any Service Order, including any current invoices, past-due payments owed for Services rendered, and any Termination Payment required to be made under this Agreement.

Failure to comply with all of the foregoing requirements within the applicable time frame stated above may result in a) Offboarding Assistance being unavailable, and b) the final and permanent deletion, termination, and cancellation of any or all of Your Services, accounts, licenses, subscriptions and all data, content, credentials and other information associated with same after seven (7) days following the missed Offboarding Assistance Request Deadline.

Offboarding Assistance Request Form. By signing this Agreement, you certify that You will read and comply with all terms, deadlines, and responsibilities outlined above and in the Offboarding Assistance Request Form provided in the Client Handbook. In order to take advantage of Our Offboarding Assistance services, and to ensure that important licenses, accounts and information are not irrevocably lost before We terminate any Service, You must complete and return, via e-mail to [Service@Securafy.com], the Offboarding Assistance Request Form or any other similar form or any other similar form We may request You to complete that lists Your duties, acknowledgements and releases, cutoff dates, and the specific services that are being terminated, by the Offboarding Assistance Request Deadline.

Offboarding Timeframe. Offboarding assistance will only be available until the end of the applicable Termination Notice Period; or, if this Agreement is being terminated with immediate effect, for fourteen (14) calendar days following the date of the notice of termination (“Offboarding Completion Deadline”). You acknowledge and agree that We will not render Offboarding Assistance outside of these time frames, unless Our invoice for any such assistance is paid for in advance of any such services being rendered.

Cooperation and Designation of New Service Provider. Due to the limited time available for offboarding, you agree to fully cooperate with Us in every step of downloading, backing up and/or transferring Your accounts and data. This includes but is not limited to a) completing and returning to Us the Offboarding Assistance Request Form or other updated service cancellation We may provide; b) providing immediate responses to Our requests for information and access; and c) designating a new managed service provider whose contact is shared with Us via the Service Cancellation Form.

Failure to Cooperate. Failure to provide us with a properly executed Offboarding Assistance Request Form, failure to cooperate with Us and timely providing Us with requested access/information, delays in designating a new managed service provider, and/or failure of Your new managed service provider to diligently cooperate or communicate with Us during the offboarding process so that all tasks may be completed during Regular Business Hours prior to the Offboarding Completion Deadline, may result in a) Offboarding Assistance being unavailable, b) additional charges billed at Our After-Hours and Emergency Rates in effect at the time of termination; and c) the final and permanent deletion, termination, and cancellation of any or all of Your services, subscriptions, licenses, accounts and all data, content, credentials and other information associated with same.

ARTICLE 16 – MISCELLANEOUS

Notices. All notices and other communications required or permitted under this Agreement shall be in writing and shall be deemed delivered when sent by e-mail or registered mail, addressed to the address of the Party to be noticed as set forth on the signature page of this Agreement, or to such other address or e-mail address as such party last provided to the other by written notice conforming to the requirements of this paragraph.

Entire Agreement. This Agreement, together with all attachments, schedules, exhibits and other documents that are incorporated by reference herein, including the Client Handbook and IT Policy Manual, constitute the entire agreement between the Parties, represent the final expression of the Parties’ intent and agreement relating to the subject matter hereof, contain all the terms and conditions that the Parties agreed to relating to the subject matter, and replaces and supersedes all prior discussions, understandings, agreements, negotiations, e-mail exchanges, and any and all prior written agreements between the Parties. Any subsequent changes to the terms of this Agreement may be amended or waived only with the written consent of both Parties and shall be effective upon being signed by both Parties.

Severability. If any provision of this Agreement is declared by any court of competent jurisdiction to be illegal, void, unenforceable or invalid for any reason under applicable law, the remaining parts of this Agreement shall remain in full force and effect and shall continue to be valid and enforceable. If a court finds that an unenforceable portion of this Agreement may be made enforceable by limiting such provision, then such provision shall be deemed written, construed, and enforced as so limited.

Successors and Assigns. You shall not transfer or assign, voluntarily or by operation of law, its obligations under this Agreement without Our prior written consent. This Agreement may be assigned by Us (i) pursuant to a merger or change of control affecting Us, or (ii) to an assignee of all or substantially all of Our assets. Any purported assignment in violation of this section shall be void.

Survival. All provisions that logically ought to survive termination of this Agreement, including but not limited to applicable Warranties, Limitation of Liability, Indemnity, Choice of Law, Forum Selection, and Confidentiality provisions, shall survive the expiration or termination of this Agreement.

No Waiver. The failure of any Party to insist upon strict compliance with any of the terms, covenants, duties, agreements, or conditions set forth in this Agreement, or to exercise any right or remedy arising from a breach thereof, shall not be deemed to constitute waiver of any such terms, covenants, duties, agreements or conditions, or any breach thereof.

Force Majeure. Either Party who fails to timely perform their obligations under this Agreement (“Nonperforming Party”) shall be excused from any delay or failure of performance required hereunder if caused by reason of a Force Majeure Event as defined herein, as long as the Nonperforming Party complies with its obligations as set forth below.

For purposes of this Agreement, “Force Majeure Event” means any event, circumstance, occurrence, or contingency, regardless of whether it was foreseeable, which is a) not caused by, and is not within the reasonable control of, the nonperforming Party, and b) prevents the Nonperforming Party from its obligations under this Agreement. Such events may include but are not limited to: acts of war; insurrections; fire; laws, proclamations, edicts, ordinances or regulations with a material effect on the Nonperforming Party’s business and/or ability to comply with its obligations under this Agreement; epidemics, pandemics and disease outbreaks; strikes, lock-outs or other labor disputes; riots; explosions; and hurricanes, earthquakes, floods, and other acts of nature.

The obligations and rights of the Nonperforming Party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the Parties’ respective obligations under this Agreement shall resume. In the event that the interruption of the Nonperforming Party’s obligations continues for a period in excess of thirty (30) days, either Party shall have the right to terminate this agreement upon ten (10) days’ prior written notice to the other Party.

Upon occurrence of a Force Majeure Event, the Nonperforming Party shall do all of the following: a) immediately make all reasonable efforts to comply with its obligations under this Agreement; b) promptly notify the other Party of the Force Majeure Event; c) advise the other Party of the effect on its performance; d) advise the other Party of the estimated duration of the delay; e) provide the other Party with reasonable updates; and f) use reasonable efforts to limit damages to the other Party and to resume its performance under this Agreement.

Choice of Law.  This Agreement shall be governed and construed in accordance with the laws of the State of Ohio, and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of Ohio.

Choice of Forum.  The Parties hereby agree that all demands, claims, actions, causes of action, suits, proceedings, including any arbitration, mediation and/or litigation between the parties, to the extent permitted under this Agreement and arising out of same, shall be filed, initiated, and conducted in the State of Ohio. Unless the provisions of this Agreement exclude litigation as a remedy in a dispute by the Parties, it is hereby agreed that any litigation arising out of this Agreement must be filed and litigated in a state or federal court located in the State of Ohio.  In connection with the foregoing, to the extent that litigation is a permissible method of dispute resolution under this Agreement, each Party hereby consents and submits to the exclusive jurisdiction of those courts for purposes of any such proceeding and waive any claims or defenses of lack of jurisdiction of, or proper venue by, such court.

Attorney Fees. In the event that any arbitration, suit or action is instituted to resolve a dispute pertaining to matters covered under this Agreement, or enforce any provision thereof, the prevailing Party in any such dispute or proceeding shall be entitled to recover from the losing Party all fees, costs and expenses of enforcing any right of such prevailing Party under or with respect to this Agreement, including without limitation, all reasonable fees and expenses of attorneys and accountants, court costs, and expenses of any appeals.

Headings Not Controlling.   Headings used in this Agreement are for reference purposes only and shall not be used to modify the meaning of the terms and conditions of this Agreement.

Counterparts.  The Parties agree that this Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall be deemed one and the same Agreement. The Parties further agree that e-signatures carry the same weight and effect as traditional paper documents and handwritten signatures; therefore, this Agreement may be electronically signed via any e-signature service compliant with the Electronic Signatures in Global and National Commerce (ESIGN) Act and the Uniform Electronic Transactions Act (UETA) as of the Effective Date of this Agreement.