MASTER AGREEMENT (revised 6/18/20)
- SCOPE OF SERVICES. Company agrees to assist Client with professional IT services as set forth in the Service Plan Addendum for the selected Service, along with projects/ out of scope services that may be executed from time-to-time by both parties under this Agreement (collectively, the “Services”). To be effective, each Service Plan or Statement of Work shall reference this Agreement and, when executed by both parties, shall automatically be deemed a part of, and governed by the terms of this Agreement. Each Service Plan or Statement of Work is enforceable according to the terms and conditions contained therein, and in the event of a direct conflict between the language of this Agreement and any Service Plan or Statement of Work, the language of the Statement of Work shall control, but only with respect to that particular Service Plan or Statement of Work. Company shall perform all services in accordance with the relevant best practices for the managed service provider industry, as well as those service levels explicitly described in any relevant Service Plan or Statement of
- Unless otherwise stated in an addendum, payment is due upon receipt. For prepaid fees, payment must be made in advance of work performed, unless other arrangements are agreed upon in Service Plan Addendum Schedule 1 or other documented agreement/understanding.
- Credit card– We require a valid credit card on file for the length of the agreement. This credit card will be billed automatically on the first day of each term (monthly or annually). If the supplied credit card becomes inactive when invoice is due or anytime during the length of the agreement, any outstanding fees are due immediately and services might stop until all arrears are paid.
- Check– Business checks can be issued to fulfill the financial obligations of this plan. We do not accept check payment for MONTHLY payment. In case of termination when a payment was made upfront for a year’s term, a prorated refund will be sent to you within 14 days or less in the form of a check after appropriate deductions of any balance Late fee and $25 penalty will be assessed for NSF checks as well.
- Payments 30 days or greater in arrears shall be subject to interest on the unpaid invoice amount(s) until and including the date payment is received, at the lower of either 1.5% per month or the maximum allowable rate of interest permitted by applicable law. Client shall be liable for all reasonable attorneys’ fees as well as costs incurred in collection of past due balances including but not limited to collection fees, filing fees and court Client may apply for a net-20 term upon Company approval.
- Unless notified by the 15th of the month that you wish to cancel Service, the Agreement will be deemed in effect and billing will automatically renew and billed in accordance with the Service Plan selected.
- In some cases, Company may agree to accept payment later than the service/sale date, which in that case, payment is due no later than 20 days from invoice date. This agreement must be in writing. Any payments received later than 20 days may be subject to a 15% late fee, which will be re-assessed monthly, at the beginning of every 30 days period, until payment is received.
- AUTHORIZED CONTACT PERSON. Client shall designate one or more authorized contact person(s) (each, an “Authorized Contact”) with whom Company will conduct Service-related communications. Client’s initial Authorized Contact(s) is/are person/people identified herein, Section 13. Likewise, Client may designate one or more Authorized Contacts with respect to individual Service Plan or Statements of Work. Each Authorized Contact shall be a point of contact for Company, and shall be authorized to provide, modify, and approve on Client’s behalf, work direction, Statements of Work, and add/change orders. Client understands and agrees that Company shall be permitted to act upon the direction and apparent authority of each Authorized Contact, unless and until Company receives written notice from Client that an Authorized Contact is no longer authorized to act on Client’s behalf. If during the Term of this Agreement, Client wishes to add or remove an Authorized Contact, or modify an Authorized Contact’s information or authority, Client must notify Company in writing (email acceptable) of the change(s) including (in the event of the addition of an Authorized Contact) the Authorized Contact’s name, address, email address and telephone
- COMPANY ACCESS AND Depending on the Service Plan selected in order to allow us to monitor the covered devices, we must install our secured 3rd party monitoring software, and create a local (or domain) full access administrator account on Client’s computers/ network equipment and other covered devices. That account will be used by our engineers and digital software to update, support, patch and protect your covered systems. If you change the password of the user account we created, change its name or password, we will not be able to perform most of the services listed in this agreement. This means we will also need remote access to your computers and will maintain access to your computers to perform services included in this agreement. This access will give us administrative rights, which means we will have the ability to modify aspects of your computer. We might remove any existing protection programs from covered devices, including (but not limited to) Anti-Virus and Anti Malware programs, to install our own industry approved solutions. In many cases we must use our own provided protection programs to be able to get the needed alerts from your devices in case of issues at Company’s sole discretion. In the event a site visit is required and/or requested by Client. Company staff must receive full access to the computer(s) and/or peripheral(s) to be serviced, access to the premises, your consent and cooperation to enter your residence or business that need to be serviced, and a safe working environment, working space and electrical power. If our technician arrives at the scheduled service time and determines that he/she does not reasonably have the access, cooperation, or safe working area described in the previous sentence, services may be denied and a one hour service-equal cancellation charge and any travel charges will be assessed. For on-site services, a person of at least 18 years of age must be present during the entire period services are provided. If our technician arrives at the scheduled service time and no adult is present, services may be denied and a cancellation charge equals to one service hour fee, plus a travel charge will be assessed/ charged.
- WARRANTIES; LIMITATIONS OF LIABILITY; LIMITATIONS OF SERVICE
- Any Third-Party Products provided to Client pursuant to this Agreement, including but not limited to third party hardware, software, peripherals and accessories (collectively, “Third Party Products”) shall be provided to Client “as is” WITHOUT ANY WARRANTY WHATSOEVER, and Company shall not be held liable as an insurer or guarantor of the performance or quality of Third-Party Company uses 3rd party program such as Anti-Virus, Remote Access, data back-up, monitoring, VPN, Hosted Exchange, VoIP, and other solution providers. Those 3rd party providers/ companies have their own terms of service agreements which are available for our customers upon request.
- Company shall use reasonable efforts to assign all warranties (if any) for the Third-Party Products to client but will have no liability whatsoever for such third-party products.
- Company warrants services for 10 days from service date. If the problem is due to misuse or fault of the client during this 10-day period, any solutions for the issue(s) are subject to a regular service fee/ hourly rate. After warranty period ends, any services provided will be billed at regular hourly rate. A warranty is never provided for virus and/or any malware removal. We cannot guarantee the removal or remediation of viruses, malware, and/or other infections as a result of Client not adhering to Company’s recommendation for protection programs or procedures.
- Client warrants and represents that it shall not use Company software for any purposes or activities that violate the laws of any jurisdiction, including (but not limited to) the sending of unsolicited, bulk commercial email (i.e., SPAM).
- In no event shall either party be liable for any special, indirect, exemplary or consequential damages, or for lost revenue, loss of profits, savings, or other economic loss, arising out of or in connection with this Agreement, any Statement of Work(s) or any Services performed or parts supplied hereunder, any loss or interruption of data, technology or services, or for any breach hereof or for any damages caused by delay in furnishing services under this Agreement or any Statement(s) of Work even if such party has been advised of the possibility of such damages. Each party’s aggregate liability to the other for damages from any and all causes whatsoever and regardless of the form of action, whether in contract, tort or negligence, shall be limited to the amount of the aggrieved party’s actual direct damages not to exceed the amount of fees paid by client to company for the monthly Services (excluding software / hardware/ licenses/ 3rd party related costs) during the two (2) months immediately prior to the date on which the cause of action accrued. It is understood and agreed that the costs of hardware or software (if any) provided to client under this agreement shall not be included in the calculation of the limitation of
- Company and/or its third party service provider reserves the right to refrain from providing any or all services ordered and instead may refund the Client’s payment, wholly or in part, on the basis that the minimum system requirements or technical needs are not met (including but not limited to wiring or overcoming physical or technical barriers, password issues where Client cannot provide us with the needed digital / physical access to the devices we are requested to work on/ assist with, etc.) or other requirements of the Client are unusual or extensive and beyond the scope of this service agreement as reasonably determined by a Company technician and/or its third party service provider upon Company’s assessment upon execution of this agreement. If subsequent deficiencies are discovered throughout the life of the Service Plan by the Company technicians and/or third-party service providers the Client will be presented with an Acknowledgement and Waiver, Schedule 2 attached hereto.
- In addition to Company rights outlined above, Company is relying that Customer has taken reasonable means to include merchantable hardware and currently supported legal (e.g. licensed to the Client) operating system software on Client servers, computers, and networking equipment covered under the terms of any Service Plan. Should the Company’s engineers, discover this is not the case during the initial start-up phase (defined in Service Plan Addendum), Company reserves the right to modify the set-up fee stated in Schedule 2 of this Agreement, attached hereto.
- Other conditions of service may include but are not limited to 1) following Company’s password policies which include recommended password complexity and refreshing on a frequent schedule, 2) purchasing/leasing equipment from known sources to avoid devices that might come pre-installed with malware/ spyware, and get devices with hardware warranty. 3) keeping the computers turned on during patch scheduled days, allowing us to install the needed updates/ security patches as recommended by the software providers, 4) keep a spare computer in place, up to date and protected – “ready to be used” in case of a hardware failure of another computer, 5) observe appropriate disposal of equipment, 6) observe prudent termination policies of personnel / vendors, 7) continued education of your team on recognizing security threats, including fake emails, phishing websites, fake links etc., and 8) periodic audits of your users and passwords, who has access to what, and restriction of users/ folders/ computers.
- Hardware and software orders may not be cancelled or returned for a refund. There is no refund on software/ programs. Replacement for damaged hardware will be available only in accordance with the wholesaler’s / manufacturer’s policies, and directly by contacting and communicating with the manufacturer(s).
- Each party (an “Indemnifying Party”) hereby agrees to indemnify, defend and hold the other party (an “Indemnified Party”) harmless from and against any and all loss, damage, cost, expense or liability, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to the negligent acts, negligent omissions or intentional wrongful misconduct of the Indemnifying Party and/or the Indemnifying Party’s employees or subcontractors, and from any Damages arising from or related to the Indemnifying Party’s uncured, material breach of this Agreement. The Indemnifying Party further agrees to indemnify, defend, save and hold harmless the Indemnified Party, its offices, agents and employees, from all damages arising out of any alleged infringement of copyrights, patent rights and/or the unauthorized or unlicensed use of any material, property or other work in connection with the performance of the Services; provided however, that such Damages are the direct result of the Indemnifying Party’s actions and not due to the Indemnified Party’s fault, in whole or in part. The Indemnifying Party further agrees to indemnify, defend, save and hold harmless the Indemnified Party, its offices, agents and employees, from all damages arising out of use of technology as a result of misuse or misunderstanding of educational information given in any online media including but not limited to email, webinar, or video and in-person presentations, seminars, or other delivery.
- COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY (IP). Each party (a “Creating Party”) owns and retains all intellectual property rights in and to all of the Creating Party’s works of authorship, including but not limited to all plans, software or software modifications developed by the Creating Party, and all modules derived or created from such materials (collectively, “Creating Party’s IP”). The Creating Party’s IP may not be distributed or sold in any form or manner without the express written consent of the Creating Party. During the term of this Agreement, Client may use and modify any intellectual property provided to Client by Company pursuant to this Agreement, provided that such modifications (i) do not result in or cause the infringement of any intellectual property rights of any third party, (ii) do not require Client to reverse engineer Company’s intellectual property, and (iii) do not negatively impact the security or integrity of any of Company’s equipment, or the integrity or implementation of the Services. Each party’s limited right to use the other party’s intellectual property as described herein automatically terminates upon the termination of this Agreement.
- Without Cause. This Agreement is based on a month-to-month term with most Service Plans unless otherwise specified. Either party may terminate this Agreement for any reason by providing the other party with thirty (30) days prior written
- In the event that one party (a “Defaulting Party”) commits a material breach of this Agreement, the non- Defaulting Party shall have the right, but not the obligation, to terminate immediately this Agreement or the relevant Service Plan provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within ten (10) days following receipt of written notice from the non-Defaulting Party.
- Equipment Removal. Upon termination of this Agreement for any reason, Client shall provide Company with access, during normal business hours, to Client’s premises (or any other locations at which Company-owned equipment is located) to enable Company to remove all Company-owned equipment from such premises (if any). It is to the discretion of Company to request for any equipment that needs to be returned to Company, to be shipped/ couriered back to Company office in Arizona, instead of Company picking up such Client will be charged rental fees for any equipment not returned to Company after official termination date.
- In the event this Agreement is terminated for any reason whatsoever, all Client data held by Company shall be returned to the Client in a commercially reasonable manner and time frame, not to exceed fifteen (15) calendar days following the date of request of the return of such data by Client. The data shall be returned in a comma separated value (i.e., CSV) format when applicable, or other method/ format, unless another industry-standard format is mutually agreed upon by the parties. In the event that Client requests Company’s assistance to transition to a new service provider, Company shall do so provided that (i) all fees due and owing to Company under this Agreement are paid to Company in full prior to Company providing its assistance to Client, and (ii) Client agrees to pay Company its then- current hourly rate for such assistance, with upfront amounts to be paid to Company as agreed upon between the parties. Company shall have no obligation to store or maintain any Client data in Company’s possession or control beyond fifteen (15) calendar days following the termination of this Agreement or after providing the data back to Client. Company shall be held harmless for and indemnified by Client against any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, Company’s deletion of Client data beyond the time frames described in this Section.
- Termination of this Agreement shall act as a termination of all Service Plans, Services, or Statements of Work then pending. Termination of a Service Plan(s) under this Agreement shall not act as a termination of any other Statement of Work, Service Plan, Service, Services or as a termination of this Agreement as a whole.
- For the purposes of this Agreement, Confidential Information shall mean any and all non-public information provided to Company by Client, including but not limited to Client’s customer data, customer lists, internal Client documents, and related information. Confidential Information shall not include information that: (i) has become part of the public domain through no act or omission of Company, (ii) was developed independently by Company, or (iii) is or was lawfully and independently provided to Company prior to disclosure by Client, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
- Company shall keep Client’s Confidential Information confidential and shall not use or disclose such information to any third party for any purpose except (i) as expressly authorized by Client in writing, or (ii) as needed to fulfill Company’s obligations under this Agreement. If Company is required to disclose the Confidential Information to any third party as described in part (ii) of the preceding sentence, then Company shall ensure that such third party is required, by written agreement, to keep the information confidential under terms that are at least as restrictive as those stated in this Section.
- Due Care. Company shall exercise the same degree of care with respect to the Confidential Information it receives from Client as Company normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases shall be at least a commercially reasonable level of
- Compelled Disclosure. If Company is legally compelled (whether by deposition, interrogatory, legal request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, Company shall immediately notify Client in writing of such requirement so that Client may seek a protective order or other appropriate remedy and/or waive Company’s compliance with the provisions of this Section. Company will use its best efforts, at Client’s expense, to obtain or assist Company in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, Company may disclose, without liability hereunder, that portion (and only that portion) of the Information that Company has been advised by written opinion of counsel reasonably acceptable to Company that it is legally compelled to disclose.
- Assignment- This Agreement or any Statement of Work may not be assigned or transferred by Company without the prior written consent of the Client. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, Company may assign its rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of the business of a party, or any other transaction in which ownership of more than fifty percent (50%) of either party’s voting securities is transferred; provided such assignee expressly assumes the assignor’s obligations
- Amendment. No amendment or modification of this Agreement (including any addendums, schedules or exhibits) shall be valid or binding upon the parties unless such amendment or modification specifically refers to this Agreement, is in writing, and is signed by one of the Designated Contacts of each
- Time Limitations. The parties mutually agree that any action for breach of or upon a matter arising out of this Agreement, Service Plan, or any Statement of Work must be commenced within one (1) year after the cause of action accrues or the action is forever
- Severability. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable
- No Waiver. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, shall not constitute an Agreement to waive such terms with respect to any other
- Entire Agreement. This Agreement, together with any Addendums or Statement(s) of Work, sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. Any document that is not expressly and specifically incorporated into this Agreement shall act only to provide illustrations or descriptions of Services to be provided and shall not act to modify this Agreement or provide binding contractual language between the parties. Company shall not be bound by any agents’ or employees’ representations, promises or inducements not explicitly set forth
- Force Majeure. Company shall not be liable to Client for delays or failures to perform its obligations under this Agreement or any Statement of Work because of circumstances beyond its reasonable control. Such circumstances include, but shall not be limited to, any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, acts of God, or any other events beyond the reasonable control of
- Non-Solicitation. Client acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, Client will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of Company’s current or past employees or company owned and/or operated by current or past employee or subcontractors of Company to discontinue or reduce the scope of their business relationship with Company, or recruit, solicit or otherwise influence any employee or agent of Company to discontinue such employment or agency relationship with Company. In the event that Client violates the terms of the restrictive covenants in this section the parties acknowledge and agree that the damages to Company would be difficult or impracticable to determine, and agree that in such event, as Company’s sole and exclusive remedy therefore, Client shall pay Company as liquidated damages and not as a penalty an amount equal to fifty percent (50%) percent of that employee or subcontractor’s first year of gross salary with Client (including any signing bonus). Such payment is due within 30 days of breaching this clause and will carry interest of 1.5% for each month until paid in
- Company and Client shall each maintain, at their own expense, all insurance reasonably required in connection with this Agreement or any Statement of Work, including but not limited to, workers compensation and general liability. Company agrees to maintain a general liability policy with a limit not less than $1,000,000 per occurrence, and $100,000 property damage liability.
- Governing Law; Venue. This Agreement and any Statement of Work shall be governed by, and construed according to, the laws of the State of Arizona. Client hereby irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts in Maricopa county, in the state of Arizona, for any and all claims and causes of action arising from or related to this agreement. the parties agree that they waive any right to a trial by jury for any and all claims and causes of action arising from or related to this
- No Third-Party Beneficiaries. The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this
- Usage in Trade. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to this Agreement shall be used to modify, interpret, supplement, or alter in any manner the terms of this
- Business Day. If any time period set forth in this Agreement expires on a day other than a business day in Scottsdale, AZ, such period shall be extended to and through the next succeeding business day in Scottsdale,
- Where notice is required to be provided to a party under this Agreement, such notice shall be deemed delivered upon receipt by the receiving party, or refusal of delivery, when deposited in the United States Mail, Email to an official mailbox address provided by the other party, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by one of the known shipping / courier providers to the addresses set forth in the opening paragraph of this Agreement, or to such other address(es) as the parties may designate from time to time.
- Independent Contractor. Each party is an independent contractor of the other, and neither is an employee, partner, or joint venture partner of the other.
- Company may subcontract part or all the Services to one or more third parties provided, however, company shall be responsible for, and shall guarantee, all work performed by any Company-designated subcontractor as if Company performed such work itself. Notwithstanding the foregoing, Company shall not delegate or subcontract any Services that are expressly designated as being non-delegable by Client on a statement of work. For the purposes of this Agreement, subcontracted services are distinct from 3rd Party hardware, software, peripherals, and accessories for warranty purposes (5.a.).
- The parties may execute and deliver this Agreement, addendums, or schedules in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall be deemed to be one agreement. Each party acknowledges and agrees that this Agreement is intended to be executed and transmitted to the other party via electronic means. Accordingly, a party may execute and deliver this Agreement (or any Statement of Work) electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature), and the receiving party shall be entitled to rely upon the apparent integrity and authenticity of such signature for all purposes.
- Commission Disclosure: Company may earn commission on some products and services we sell, recommend, or provide. We are members of multiple affiliate programs; however, we only join affiliate programs for businesses, products, and services that we would also recommend without commission.
- Price Adjustment. The Price for services may be adjusted by Company, at any point within at least 30 days’ notice before renewal date, unless otherwise specified in writing.
11) PROCEDURE FOR REQUESTING SERVICE
Company requests that Client contacts us with any support/ technical related request using the below methods, in this order:
- (Preferred method, fastest response) – Online support ticket using our online form listed on our www.click-911.com
- Start a support chat on our support website- click-911.com
- Email sent to firstname.lastname@example.org
the following information must be included in the body of the email:
- Requester’s full name
- Client company name
- Call-back number
- Detailed description of the issue
- Phone (480-614-4227) – should be used to create a ticket or request support in emergency situations.
- Our team will create or update a ticket for each call received, whether the issue is in or out of scope.
- Company will assign the ticket to the next available engineer, based on company’s own decision.
- Company will contact the client before connecting to their PC to perform or schedule work to be done if requested to do so. If there is no answer, the technician will leave a voicemail asking for the client to call back along with the call back number. An Email might be used as well or instead of a phone call.
- Company will make at least three attempts to contact the client and If the client has not responded after the third try, the ticket might be closed, but can be reopened as needed in the future.
Please refer to our website for current business hours. Services performed before and/or after business hours or during national holidays will be charged at “time and a half” or “double rate” fees. Business hours are subject to change & will be posted on our website at least 30 days prior to change.
- SPECIAL PROJECTS – TIME AND MATERIALS
Any Service outside of those covered by the Addendums above will be specified and quoted on an individual case basis in a Statement of Work.
- AUTHORIZED PERSON(S).
The following person(s) are authorized to represent the Client in matters related to this Agreement, Service Plans, and Statements of Work.
Name: ______________________________ Email ________________________________________ Phone# _______________
Name: ______________________________ Email ________________________________________ Phone# _______________
Name: ______________________________ Email ________________________________________ Phone# _______________
(additional names can be added on a separate page using the above format)