Terms
THESE TERMS OF SERVICE TOGETHER WITH ANY ACCEPTED ORDERS (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN THE CLIENT LISTED IN THE AGREEMENT (“CLIENT” OR “YOU”), AND INTEGRITY GLOBAL SOLUTIONS, LLC d.b.a. INTEGRITY IT SOLUTION., A MISSOURI BASED COMPANY WITH A PLACE OF BUSINESS AT 30 W PERSHING RD., SUITE 820 KANSAS CITY, MO (“INTEGRITY”). BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT BY SIGNING THE AGREEMENT, YOU ARE ACCEPTING ALL OF THE TERMS OF SERVICE HEREIN OUTLINED. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU MAY NOT USE THE SERVICES. YOU AGREE THAT THEE TERMS ARE ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU.
WHEREAS, Provider is engaged in the business of providing services involving the design, installation, backup, maintenance, on-site service, and remote support of computers, computer networks, and all related areas. Provider is also engaged in the business of selling/leasing computers, servers, networking equipment, cables, software and peripherals; and
WHEREAS, Client desires to retain Provider to perform the services set forth in the Agreement;
NOW, THEREFORE, Provider and Client agree as follows:
1. DEFINITIONS:
Reasonable: “Reasonable” shall be understood to mean the fair, proper course of action under the circumstances, as defined by commonly accepted industry practices and standards.
Unlimited: “Unlimited” shall be understood to mean a service which is not subject to an hourly or per-unit rate, but is subject to practical limitations, such as compatibility and obsolescence.
Hourly: “Hourly” shall be understood to mean a service which is subject to an hourly rate, as defined elsewhere in the scope of the Agreement.
Term: “Term” shall be understood to mean the length of time between the Effective Date and the Expiration Date, may be extended by a renewal.
User: “User” shall be understood to mean a person who, regardless of work agreement or employment type with the Client, uses an electronic device to access Client systems, services, resources, or data.
Server: “Server” shall be understood to mean a device that serves files, content, services, databases, or systems to a network of connected devices, users, or systems over the intranet or internet.
Special Projects: “Special Projects” shall be understood to mean an undefined task that extends beyond the normative daily scope of maintenance, like-for-like hardware replacement, or general upkeep as defined in the Scope of Services within the Agreement.
2. DURATION & AMOUNT OF CONTRACT:
The Term of the Agreement commences on the Effective Date outlined in the Agreement and expires 12 months thereafter. During the Term, billing for each month will occur between the 1st day of the month of service, and approximately the 15th day of the following month billed according to the parameters defined in the Agreement, payable within 30 days of receiving the invoice. In addition to the monthly fee, one-time “onboarding” fees (initial setup of network, email, and file sharing as well as data migration) and specific IT hardware equipment costs may be associated with the start of the Agreement. Any taxes applicable to the service or products provided hereunder shall be added to the amount otherwise due hereunder and be payable by Client.
The monthly fee is correlative to the Scope of Services in Section 3, based upon the service usage of the Client in the month previous. If the Client adds or removes users, servers, or other services covered in the Agreement, the fixed monthly fee will be updated to reflect the changes on the following invoice, based upon the rates defined in the Agreement. Proration, if any, applies only to the month of the commencement (“Effective Date”) and the month of termination of the Agreement, where the Client abides by the terms defined in Section 5.
Upon the expiration of the Term, the Agreement will automatically renew for successive twelve (12) month periods unless either Party provides written notice of cancellation to the other Party no less than 30 days before the Expiration Date of the Agreement.
In order to account for overall economic conditions and escalating costs associated with providing services outlined in the Agreement, Provider may adjust the fixed monthly fee annually by up to five percent (5%) of the total monthly rate (after additional users and servers) on the annual automatic renewal date of the Agreement, without modifying the Agreement.
If the Client disputes any charges, services, products, or any other portion of any billing invoice, the dispute must be delivered to Provider in writing within 30 days of the date Client received said invoice from Provider. If Client fails to dispute the invoice timely, Client waives any and all rights to dispute said charges, services, products, or any other portion of any billing invoice.
The Client is responsible to notify the Provider of any staffing changes where staff is increased, and of other changes which impact the calculation of charges, except those changes implemented by Provider. Notification should be sent to: [email protected]. The Provider reserves the right to bill the Client for any outstanding balances based upon unreported changes from month(s) prior, as defined by the rates in Section 3.
3. SCOPE OF SERVICES:
The Provider shall perform some or all of the following services for Client, as described in the Agreement: The design, installation, backup, restoration, maintenance, monitoring, on-site service, and remote service of computers, servers, cybersecurity measures, and computer networks as needed.
All services above are as described but may have initial equipment or licensing cost associated with the purchase of durable goods, equipment, or software if not specified. These costs may be billed as separate lines on the monthly invoice and are subject to the pre-purchase review and approval of the Client, when applicable.
ONBOARDING:
The Client agrees to the Onboarding and IT Equipment costs outlined in the Agreement for starting services for the scope of the Agreement. Client further recognizes that IT hardware costs fluctuate. Should the commencement of the Agreement be delayed 60 days or more, Provider reserves the right to adjust the price of any hardware outlined in the Agreement.
PURCHASING:
From time to time, Provider may need to purchase computer parts, equipment, supplies, software, etc. to provide Services to Client. Client agrees to reimburse Provider for all such expenses incurred under the Agreement. Purchases will not be made without the prior verbal or written approval from Client.
4. OUT-OF-SCOPE SERVICES:
The below services and support types are outside the scope of the Agreement, and may be performed at an hourly rate set by Provider.
a. Support for office moves, Special Projects, or devices that are not covered elsewhere in the Agreement, or these Terms.
b. Support for devices purchased independently from the recommendation of the Provider, and support thereof, may be billed at the hourly rates set by the Provider defined in the Agreement, if additional configuration or support is required.
c. Regulatory compliance consultations, changes, implementations, audits, or other tasks stemming from or pertaining to trade governance may be subject to hourly charges, if not covered elsewhere in the Agreement or Terms. This includes compliance with regulatory bodies, authorities, commissions, and industry governance.
d. Any solutions and services requested by Client that are not included in the Agreement may be added on at any point during the term of the Agreement, and will be subject to the costs of those solutions.
e. Business phone systems and VoIP solutions, if not covered elsewhere in the Agreement.
f. On-site support outside the service area of Provider may be performed by a Provider affiliate. Rates for service fulfilled by a Provider affiliate may vary.
g. Out-of-Scope Services will be billed at the Provider’s current hourly rate, determined separately from the Agreement, to be billed in arrears following the month the services were performed.
h. Billing for any Out-of-Scope Services shall be in fifteen (15) minute increments, with a minimum of fifteen (15) minutes.
i. Billing for any on-site service calls made by the Provider for Out-of-Scope Services shall be at a minimum of one (1) hour, including one-way drive time.
j. Any Out-of-Scope Services provided by Provider after hours (i.e. after 5:00 p.m., Central Time), during weekends (i.e. Saturday and Sunday), and during federal holidays, will be billed at time and one-half times the standard hourly rate.
5. OBLIGATIONS OF CLIENT:
a. Client will promptly notify Provider upon learning of any significant problem with the performance of the network, any computer, or any service provided by Provider;
b. Client will reasonably cooperate with Provider in connection with its performance of the services by providing (i) access to Client’s physical premises as necessary and by providing login information for network devices and all other login information as is necessary for Provider to perform the aforesaid services; and (ii) installing remote support tools and to maintain those tools;
c. Client will notify and consult with Provider on any significant changes to its network, computers, systems, personnel, or any other relevant change;
d. Client will make all payments as outlined above in a timely fashion. Client agrees to pay a late fee of $25/month or 2% of the past due balance, whichever is greater. The Provider will provide written notice to the Client of any default of payment under this paragraph. If the Client has not resolved the default within 30 days, Provider reserves the right at any time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) if Client does not make timely payments as outlined above, or if Client in any way breaches the Agreement. In the event Provider engages legal counsel to enforce its rights under the Agreement, Client shall reimburse Provider for the expenses incurred.
If Client modifies or changes any Services or Products provided by Provider without the express written consent of the Provider, Client does so at its own risk and expense. Provider will not be liable or responsible for problems created as a result of Client’s changes to Services, Products, or Client’s network or systems. If Client wants Provider to correct problems resulting from unauthorized changes, this may be subject to Out of Scope hourly charges at Provider’s discretion.
6. LIMITED WARRANTY AND DISCLAIMERS:
The Provider warrants that the above-listed services and products shall be provided in a skillful manner, and in conformity with generally prevailing industry standards and the time frame, if any, set forth herein. Provider expressly disclaims any and all other express or implied warranties that could/may/do relate to any services or products it provides, including merchantability or fitness for a particular purpose.
Client acknowledges that no computer system, network, or software can be made completely stable or secure, and that Provider cannot guarantee the stability, safety, or security of Client’s network or data. The Client also understands that all technical devices, systems and software age, and as they age, compatibility with current versions may be reduced or otherwise impossible, due to no fault of the Provider. The Client agrees that the Client is responsible and that the Provider is not responsible for the lifecycle of third party software, systems, hardware, or other products from a third party manufacturer or developer. Where necessary, the Client agrees to purchase appropriate upgrades to non-supportable or aging systems, or otherwise agrees to release the Provider from the responsibility to support the obsolete hardware, systems, devices, or software.
The Client understands that the security of its systems could be compromised even after Provider has put security measures in place. Likewise, the Client understands that catastrophic equipment failure could cause the loss of local and/or online backups, and that said failure could prohibit Provider from recovering any or all data. Further, the Client understands that systems may fail and cause downtime and/or loss of revenue; that service and/or Internet could go down preventing Provider from receiving relevant alerts; that Provider may not be able to prevent a failure from happening even if the Provider is alerted before a system has completely failed; that Internet problems could prevent systems from backing up data; that messages, e-mails, etc. could be delayed if the service is down; that legitimate messages are sometimes caught/rejected by the spam filter; and that website hosting services could go down causing email/website downtime. Except where otherwise agreed to in the Agreement, Client is solely responsible for implementing and monitoring appropriate operational and security procedures, and for making appropriate backup copies of all data, unless otherwise agreed to in writing. Client accepts the above risks and releases Provider from claims, liabilities, losses, and expenses related thereto. Further, the Client is solely responsible for maintaining regulatory compliance with all applicable regulating bodies, authorities, auditing controls, and governing organizations, unless otherwise agreed to in writing.
The Provider may supply/provide to Client third party software, hardware and products (“Provider Products”) or Client may obtain third-party software, hardware, and products from third parties directly, ("Third Party Products"). The Provider Products, all Third Party Products, and all beta software (collectively referred to as the “Products”) are provided "as is," "where is," "as available," "with all faults" and, to the fullest extent permitted by law, without any express or implied warranty by Provider of any kind. Client represents to Provider that it has obtained all the necessary licenses and approval for the use of any and all Third-Party Products. Client agrees to indemnify and hold harmless Provider if Provider is sued by or a claim is made by a third party against Provider for the illegal and/or unauthorized use of any of the Third-Party Products by Client. Client understands and agrees that its installation, use and access of the Products is at Client’s sole discretion and risk and that Client is solely responsible for any damages to its computers, hardware, software, and the loss of data that results from the use thereof. No oral or written information or advice given by Provider shall create any additional warranties or in any way increase the scope of Provider's obligations hereunder. Client hereby waives any and all claims, now known or later discovered, that Client may have against Provider and its owners, shareholders, members, partners, employees, attorneys, affiliates, suppliers and licensors arising out of Client’s use of the Third-Party Products. The Products may be used to access and transfer information over the internet. Client acknowledges and agrees that Provider does not operate or control the Internet and that (i) viruses, worms, cryptolocker, trojan horses, and other undesirable data, or software, or (ii) unauthorized users (e.g., hackers) may attempt to obtain access to and damage Client’s data, web sites, computers, or networks. Provider shall not be responsible for such activities. The indemnities and releases provided in this Section shall survive termination of the Agreement.
THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH EXTEND BEYOND ANY EXPRESSLY STATED IN THE AGREEMENT. UNLESS OTHERWISE EXPRESSLY STATED OTHERWISE IN THE AGREEMENT, THE AGREEMENT EXCLUDES, AND PROVIDER HEREBY DISCLAIMS, TO THE FULLEST EXTENT APPLICABLE BY LAW, ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES REGARDING QUALITY OF INFORMATION, SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY OF BACKED-UP DATA AND PERFORMANCE OF THE SERVICES AND/OR PRODUCTS. PROVIDER DOES NOT WARRANT THAT THE PRODUCTS SELECTED BY THE CLIENT WILL MEET CLIENT’S OPERATIONAL NEEDS, OR THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCTS WILL BE CORRECTED, OR THAT ENCRYPTION ALGORITHMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE. UNLESS ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THE AGREEMENT ARE INCORPORATED HEREIN, THEY ARE SUPERSEDED BY THE AGREEMENT AND OF NO FORCE OR EFFECT.
Provider shall not be liable for any indirect, special, incidental, or consequential damages (including damages for loss of business, loss of profits, loss of backup data, or the like), whether based on breach of contract, tort, product liability or otherwise.
7. LIMITATION OF LIABILITY:
Client is solely responsible and liable for its conduct, its data, and its backed-up data related to the Products. Client agrees to defend Provider, and its owners, shareholders, members, partners, employees, attorneys, affiliates, suppliers and licensors and hold them harmless from and against any and all liability, loss, cost, damage, liability and expense (including attorney’s fees, expert fees and out-of-pocket expenses) arising out of, resulting from, or in connection with Client’s breach of the Agreement, Client’s use of 3rd party Products, or Client’s backed-up data. To the maximum extent permitted by law, in no event shall Provider or its owners, shareholders, members, partners, employees, attorneys, affiliates, suppliers and licensors be liable to Client or any third party for any cost to procure substitute services or data, or any direct, consequential, special, incidental, punitive, indirect, exemplary, or any other damages, including, without limitation, damages for personal injury, lost profits, loss of data and backed-up data, business interruption, or lost revenues, arising out of the services provided to Client by Provider, Client’s use or inability to use the Products, or Client’s use of data or files stored therein, even if Provider has been advised about the possibility of such damages (whether such damages arise in contract, tort (including negligence or otherwise)). In any case and without limiting the foregoing, the entire liability of Provider and its owners, shareholders, members, partners, employees, attorneys, affiliates, suppliers and licensors for all damages of every kind and type (whether such damages arise in contract or tort) shall be limited to the fees for services paid by Client to Provider in the six (6) calendar months prior to the damages arising. If the Products are provided to Client without charge, then Provider shall have no liability to Client whatsoever. Due to the difficulty in ascertaining a quantifiable damage amount in the computer service industry, Provider and Client hereby agree that the foregoing terms set a reasonable limit on the amount of damages recoverable from Provider. The parties agree that proving damages would be speculative and difficult to substantiate, and the parties agree that the foregoing liquidated damages do not penalize any party to the Agreement. Client expressly recognizes and acknowledges that such limitation of liability is an essential part of the Agreement and is an essential factor in establishing the price of the Products. Some jurisdictions do not allow the exclusion of incidental or consequential damages, or the limitation on how long an implied warranty lasts, so some of the foregoing terms may not apply to Client.
8. CONFIDENTIAL INFORMATION/PRIVACY:
All information relating to Client that is known to be confidential or proprietary will be held in confidence by Provider and will not be disclosed by Provider except to the extent that such disclosure is reasonably necessary to the performance of Provider’s Work or obligations under the Agreement. Provider respects Client’s privacy, and assures Client that Provider does not collect personal information from Client unless Client provides it to Provider. However, Provider may collect and analyze system information from Client’s systems for customer support, troubleshooting and/or debugging. In no circumstances shall Provider sell or provide any of said information to any other third party without Client’s consent.
9. FORCE MAJEURE:
Provider's failure to perform any term or condition of the Agreement as a result of conditions beyond its control such as, but not limited to, war, terrorism, revolutions, strikes, fires, floods, explosions, acts of God, parts shortages, governmental restrictions, power failures, or damage, destruction or failure of any network facilities or servers, or software, or performance failures of parties outside of Provider’s control, including, but not limited to, disruptions in service attributable to the third party service Provider’s actions, shall not be deemed a breach of the Agreement, nor shall Provider have any liability for damages resulting from the above.
10. DEFAULT:
Client will be in default of the Agreement if it does any of the following: fails to make timely payments; fails to reasonably comply with the obligations listed in section 5 of the Terms; fails to reasonably comply with any other obligations of Client contained in the Terms; fails to follow the reasonable advice and/or suggestions of Provider; subjects Provider to any type of 3rd party liability; or becomes insolvent, files any chapter of bankruptcy, and/or has a receiver appointed. Provider will be in default of the Agreement if it does any of the following: fails to reasonably comply with the obligations listed in sections 2 and 3 of the Terms; fails to reasonably comply with any other obligations of Provider contained in the Terms; fails to follow the reasonable advice and/or suggestions of Client; subjects Client to any type of 3rd party liability; or becomes insolvent, files any chapter of bankruptcy, and/or has a receiver appointed.
In the event the Agreement must be enforced by a party, such enforcement and any dispute under the Agreement must be resolve through binding arbitration. Either party may serve written notice upon the other identifying specifically the matters to be arbitrated. Such arbitration shall be pursuant to the commercial arbitration rules of the American Arbitration Association. The final decision of the arbitrator shall be in writing with a clear and concise statement of his or her decision and shall specify the factual and legal basis for his or her decision. The decision of the arbitrator with respect to any matter submitted to arbitration under the Agreement shall be final and binding upon, and fully enforceable against, the parties to the dispute and shall not be subject to judicial appeal. A party may seek judicial enforcement of any final decision of the arbitrator. Any party that is subject to an adverse determination by the arbitrator hereby consents to specific performance and/or other equitable remedies to enforce such determination.
11. TERMINATION:
Provider shall have the right to terminate the Agreement following the notice period provided in the Terms if Client is in default of the Agreement and Client has failed to cure within the notice period as stated above. Provider’s failure to terminate the Agreement due to a default by Client will not be deemed an acceptance of that breach. Provider retains the right to terminate the Agreement if future defaults occur. Provider may terminate the Agreement immediately upon written (electronic or physical) notice if Provider reasonably considers that its personnel are being treated in an unprofessional, discriminatory, or harmful manner.
Any expiration or earlier termination of the Agreement does not modify or alter any of the obligations of the parties which accrued prior to such termination. The sections of the Terms which address taxes; duty; fees; payment; procurements; proprietary rights and information; warranty; export and re-export; remedies; limitations of liability; termination; governing law; and venue or other provisions which by their terms or circumstances shall survive termination shall survive any expiration or termination of the Agreement.
12. ASSIGNMENT:
The Agreement may not be assigned by Client, by operation of law or otherwise, without the prior written consent of Provider. Provider may, without the consent of Client, assign the Agreement or all or any portion of its rights and obligations under the Agreement.
13. CHOICE OF LAW /WAIVER OF JURY TRIAL:
The Agreement is entered into in the State of Missouri and the Agreement shall be construed and enforced in accordance with the laws of said state. Client hereby waives its right to trial by jury on all issues. The Agreement may only be enforced by binding arbitration, as provided above in the Terms.
14. INDEPENDENT & SEPARATE ENTITIES:
The Parties to the Agreement are independent and separate entities. Neither party is an agent, representative, or legal partner of the other party. Neither party shall have any right, power, or authority to enter into any agreement for or on behalf of, or to incur any obligation or liability of, or to otherwise bind, the other party. The Agreement shall not be interpreted or construed to create an association, joint venture, or partnership between the Parties or to impose any partnership obligation or liability upon either party.
15. PROVISIONS OF THE AGREEMENT:
The provisions of the Agreement are severable. If any portion, provision, or part of the Agreement is held, determined, or adjudicated to be invalid, unenforceable or void for any reason whatsoever, each such portion, provision or part shall be severed from the remaining portions, provisions or parts of the Agreement and shall not affect the validity or enforceability of any remaining portions, provisions or parts.
16. MODIFICATION OF THE AGREEMENT:
The Agreement shall not be altered, amended, or modified by oral representation made before or after the execution of the Agreement. All modifications must be in writing and must be duly executed by both parties. The Agreement constitutes the entire agreement of the parties and there is no other agreement, written or oral, expressed, or implied, between the Parties with respect to the subject matter of the Agreement.
17. AUTHORIZED REPRESENTATIVE & SIGNATURES:
The individuals whose signatures are affixed to the Agreement in a representative capacity represent and warrant that they are authorized to execute the Agreement on behalf of and to bind the Parties. The Agreement may be executed in counterpart facsimile or PDF signatures, and all such counterparts shall constitute a single form of the Agreement.
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