Last modified on June 30, 2020
IMPORTANT – READ CAREFULLY:
Please read the following legally binding Master Client Agreement (“Agreement”) between ECS Acquisition Holdings, LLC, a Delaware limited liability company, on behalf of itself and its present and future affiliates, including without limitation, Enterprise Computing Services, LLC and My IT, LLC (collectively, “Supplier”) and the person or entity that has been granted rights under this Agreement (“Client”) carefully. This Agreement will apply to any quote, order form, proposal or similar document provided by Supplier to Client (“Sales Contract”) for the use or delivery of any hardware, software, services or other offering by Supplier to Client (each, an “Offering”). Supplier and Client hereby agree that the following terms and conditions will apply to all Offerings that may be provided by Supplier to Client.
1. Statement of Services.
A. Except as otherwise agreed on a Sales Contract, Supplier agrees to perform as requested and within the hours set forth herein technology support and consulting services (“Services”) to Client as requested by Client. Unless otherwise expressly stated in a Sales Contract, Supplier will not provide any custom development services under this Agreement.
B. Client is responsible for all surcharges for service provided outside normal business hours as specified below.
C. Services may include Supplier providing assistance to Client in the resolution of computer and/or computer-related problems via remote connectivity or on-site service.
D. Supplier shall act as a liaison between Client and designated software and hardware manufacturer(s) for problem resolution. In the event services are required from the manufacturer, it shall be the Client’s responsibility to pay the manufacturer for such services. In the event a manufacturer provides Supplier with a “fix” and Supplier installs such fix, upon Client request and Supplier acceptance, Client will be billed by Supplier for such installation service at its then current hourly rates and terms in effect.
E. Supplier may, at its discretion, use a qualified subcontractor to provide services and other Offerings requested by Client.
2. Service Definitions.
A. Business Hours: Standard business hours for administrative, sales and professional services are 08:00AM – 05:00PM Central Standard Time (CST), Monday thru Friday, excluding Supplier standard holidays.
B. 24×7: 24 represents the number of hours, 7 represents the number of days per week.
C. Incident: A single event or problem that requires technical support via telephone or on-site support. Multiple incidents may be resolved within a single telephone support call or on-site visit.
D. Remote Support: Remote Support is provided direct from Supplier’s remote operations center from 08:00AM – 05:00PM CST (Monday thru Friday), excluding Supplier standard holidays. Remote support will be invoiced in ¼ hour increments.
E. Onsite Support: Supplier’s field analysts provide full onsite support ranging from general maintenance, software, internetworking, and network administration, to full product installations. A minimum one (1) hour charge applies to all dispatched onsite support calls unless otherwise specified in a Sales Contract. Time billed for onsite support begins when the Supplier representative is dispatched and ends when he or she leaves the site.
F. Scheduled Onsite Support: Our scheduled onsite support service is generally available from 08:00AM – 05:00PM CST (Monday thru Friday), excluding standard Supplier holidays, after one (1) business day notice from Client to Supplier, or as otherwise defined in a Sales Contract.
G. After-Hours Support: After-hours, weekend and holiday service is available through remote and onsite support. Remote afterhours support will be invoiced in one half (1/2) hour increments. Onsite after-hours support will incur a one (1) hour minimum charge.
H. Remote Troubleshooting: Our remote analysts are generally available to provide secure login to Client’s network to endeavor to troubleshoot computer issues. In addition, the remote analysts are generally available to remotely administer applications, operating systems, software and server reboots for Windows operating systems. Client must provide a secure and sufficient remote connection to obtain this service.
3. Third Party Products.
Any third party products resold by Supplier to Client, including without limitation, hardware, any software licenses and cloud-based software services, as well as any related support or maintenance provided by or behalf of the manufacturer (collectively, “Third Party Products”) will be governed by either the license or other applicable agreement between Client and the original manufacturer or licensor (“Manufacturer”) or, if no such agreement exists, Manufacturer’s standard license, support or other applicable agreements prevailing at the time of sale. Supplier is not a party to any such terms between Client and Manufacturer, and Client agrees to look solely to Manufacturer for satisfaction of any and all claims or obligations related to that Manufacturer’s Third Party Product.
Each hardware device (“Device”) provided by Supplier to Client hereunder as part of a Hardware as a Service Offering will remain the sole property of Supplier or its licensors or service providers. Client will have no rights whatsoever in or to the Device other than the right to use it internally during the term of the Sales Contract as part of the applicable service Offering. Client acknowledges and agrees that the Device is being provided as part of a service Offering and that the applicable Sales Contract is a services agreement, and nothing herein will be deemed or construed as a lease or other grant or transfer of any real or personal property. Specifically, Client acknowledges and agrees that Client has not been granted any real property interest in any Device listed in the applicable Sales Contract and Client has no rights under any real property or landlord/tenant laws, regulations, or ordinances pursuant to such Sales Contract. Supplier will configure, install and maintain the Device per the terms set forth in the applicable Sales Contract. Risk of loss for a Device shall transfer to Client upon the delivery of the Device to the Client. Client shall be liable to Supplier for all damage, other than normal wear and tear, to the Device. If the applicable term of the Sales Contract has expired, and Client fails to promptly return the Device to Supplier, then Supplier will invoice Client for each such Device(s) at a rate based on then-current or last suggested retail price, as applicable, and Client agrees to pay such invoice.
A. Supplier will charge Client for fees and materials as agreed upon in writing in all Sales Contracts. All other Offerings will be invoiced at Supplier’s standard billing rates.
B. Payment terms: Except as otherwise specified in an invoice from Supplier to Client or as otherwise agreed in a Sales Contract, all payments for services rendered by Supplier are due not later than 15 days after the date of the Supplier invoice for the Offering. Client hereby accepts responsibility of payment for all services rendered under this Agreement. Payment for Third Party Products and Devices is due when product is initially received.
C. Supplier shall be reimbursed by Client for all reasonable out-of pocket expenses incurred by Supplier in the performance of services for Client.
D. Supplier may invoice for travel incurred outside a one hundred (100) mile radius of a Supplier service center. This includes mileage expenses, lodging, and other incidental travel expenses.
E. There shall be added to the charges, and Client agrees to pay, an amount equal to all taxes based upon all services, equipment, hardware, software, freight and other applicable charges. This includes all state and local sales and use taxes based on gross revenue, and any taxes or amount in lieu thereof paid or payable by Supplier in respect to the foregoing. Notwithstanding the foregoing, the Client remains liable for all taxes due, including all sales and use taxes, even if same are not included on an invoice from Supplier to Client.
F. Client agrees to make payment in full to Supplier for all amounts due according to Supplier invoice(s). In the event Supplier should commence any actions, or otherwise seek to enforce this Agreement against Client, Client agrees to pay reasonable attorney’s fees, court costs and other expenses incurred by Supplier whether or not suit is filed.
G. Late Payments: In the event that a payment is made after the terms specified by the invoice, a late payment interest charge will be assessed at the rate of 1.5% per month on all such past due invoice balances.
6. Client Responsibilities.
A. To request standard support Services, Client shall submit requests for service through Supplier’s client service portal, or by calling Supplier Monday through Friday between the hours of 8:00AM and 5:00PM (CST); excluding Supplier standard holidays.
B. To request after-hours support Services, Client shall submit requests solely by calling Supplier and selecting the after-hours support option. Client must leave a valid phone number for the Supplier support analyst to call back.
C. For onsite Services, Client agrees to allow Supplier field and network analysts or its subcontracted service technicians reasonable access to the premises and facilities where the Client equipment is located. Client agrees to provide Supplier with passwords needed to perform services. Client agrees to provide an adjacent work area that includes adequate lighting, power outlets, a telephone line and at least one (1) data transmission line, if applicable, for troubleshooting and testing communications.
D. Client may use the Offerings for any legal purpose, provided such use does not violate the terms and conditions of this Agreement, the applicable Sales Contract and any applicable agreements between Client and a Manufacturer. Client will comply with all applicable laws and regulations in its use of the Offerings, including without limitation, those regarding export control.
E. Client shall furnish a sufficient number of trained and experienced personnel and deliver all necessary access, information and materials in a timely fashion. Supplier will not be responsible for any delays, cost overruns, or liability resulting from Client failing to meet such obligations or the obligations set forth in this Section 6. To facilitate prompt and efficient completion of the work, Client and Client’s personnel shall fully cooperate with Supplier and its personnel in all respects, including, without limitation and as applicable, complying with any prescribed standards set forth in the applicable Sales Contract, providing information as to Client requirements, providing access to Client’s facilities, systems, equipment and hardware as needed during and after normal business hours, and providing access to all necessary information regarding Client’s facilities and systems. If Supplier determines that the Offerings require Supplier to remotely access Client’s computer systems, Client agrees that Client shall also provide Supplier with all information reasonably requested by Supplier for Supplier to remotely access Client’s computer systems. Client will be responsible for making, at its own expense, any changes or additions to Client’s current systems, software, and hardware that may be required to support performance of the Offerings.
Client acknowledges and agrees that the providing of the Offerings may in some circumstances result in the disruption of other services at Client’s facility or on Client’s computer systems or loss or damage to software or hardware. Client is strictly liable for the acts and omissions of each of Client’s officers, employees, contractors, agents and other representatives with respect to the applicable Sales Contract. IT IS THE RESPONSIBILITY OF THE CLIENT TO ENSURE THAT PRESCRIBED BACKUP OPERATIONS PERFORMED BY THE CLIENT ARE ADEQUATE. Supplier will not be responsible for Client’s failure to do so, nor for the cost of reconstructing data stored on disk files, tapes, memories, etc., lost during the performance of service performed hereunder.
7. Representations and Warranties.
A. Services. Supplier warrants that it will provide the Services in a timely and professional manner. In the event of breach of the foregoing warranty, Supplier shall, as its sole obligation and Client’s sole remedy, re-perform the Services as warranted; provided that Client must give Supplier notice of such breach within thirty (30) days of the delivery of the affected Services.
B. Devices. During the applicable term of the Sales Contract, the Device will be free from any material defects in materials or workmanship. This warranty shall not apply to any nonconformance (i) that Supplier cannot recreate after exercising commercially reasonable efforts to attempt to do so; (ii) caused by misuse of the Device or by using the Device in a manner that is inconsistent with this Agreement, the applicable Sales Contract or the documentation accompanying the Device; (iii) arising from the modification of the Device by anyone other than Supplier; (iv) resulting from damage, other than normal wear and tear, to the Device by Client; or (v) caused by any problem or error in third party software or hardware regardless of whether or not the Device is designed to operate with such third party software or hardware. Supplier’s sole obligation and Client’s sole and exclusive remedy for any breaches of the warranty stated in this Section 7.b shall be for Supplier to repair or replace the device.
C. Third Party Products. Supplier is reseller of Third Party Products, not the original manufacturer or licensor, and therefore disclaims any warranty responsibility regarding Third Party Products provided under this Agreement. Supplier is not a party to any warranty terms between Client and Manufacturer, and Client agrees to look solely to Manufacturer for satisfaction of any and all warranty and other claims related to that Manufacturer’s Third Party Product.
D. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, SUPPLIER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT OR TITLE, OR ANY WARRANTY RELATING TO THIRD PARTY PRODUCTS. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY WARRANTY PROVIDED BY A MANUFACTURER TO CLIENT.
Each party acknowledges that it acquires only the right to use the other party’s Confidential Information under the terms and conditions of this Agreement and does not acquire any rights of ownership or title in the other party’s Confidential Information. Each party will hold in confidence any Confidential Information received by it from the other and will protect the confidentiality of such with the same degree of care that it exercises with respect to its own information of like import, but in no event less than reasonable care. Each party will only disclose Confidential Information to its employees, agents, representatives and authorized contractors (collectively “Representatives”) having a need to know for the purposes of this Agreement. Each party will notify and inform such Representatives of each party’s limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information and will obtain or have obtained its Representatives’ agreements to comply with such limitations, duties, and obligations with regard to such Confidential Information no less restrictive than those contained herein. Each party is liable for all acts and omissions of the Representatives related to the other party’s Confidential Information. Each party agrees to give notice to the other party immediately after learning of or having reason to suspect a breach of any of the restrictions set forth in this Section. In the event that a party is required to disclose Confidential Information pursuant to any applicable statute, regulation or order of a court of competent jurisdiction, that party may do so provided that it uses commercially reasonable efforts to notify the other party of the required disclosure, discloses only such Confidential Information as is required by the governmental entity, and uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information disclosed. “Confidential Information” means information which has value because it is not generally known and which the disclosing party uses reasonable means to protect and includes without limitation any information designated as confidential or proprietary by either party to this Agreement upon disclosure. Confidential Information may include proprietary information of third parties who have granted licenses to or have contractual relationships with the disclosing party. Confidential Information excludes information that receiving party can clearly establish by written evidence: (a) was in the possession of, or was known by, receiving party prior to its receipt from disclosing party; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by receiving party from a third party not under any obligation of confidentiality; or (d) is independently developed by receiving party without use of Confidential Information.
Supplier shall develop, implement, maintain, and monitor a written data security program that contains commercially reasonable administrative, technical, and physical safeguards to protect against anticipated threats or hazards to the security, confidentiality or integrity of Client Confidential Information including the unauthorized or accidental acquisition, destruction, loss, alteration or use of, and the unauthorized access to, Client Confidential Information.
10. Term and Termination.
A. Term. The term of this Agreement commences on the last date of execution of the first Sales Contract entered into by the parties under this Agreement and continues until the termination of the last Sales Contract executed by the parties under this Agreement unless earlier terminated as provided herein. Termination of this Agreement automatically terminates all valid Sales Contracts entered into by the parties under this Agreement. The term of each Sales Contract commences on the last date of signature (“Sales Contract Effective Date”), and will continue for the period set forth in the Sales Contract.
B. Termination for Cause. Each party may terminate this Agreement in the event the other party breaches a material term of this Agreement or a Sales Contract and does not cure such breach within thirty (30) days of receipt of notice to do so; provided that Supplier may terminate this Agreement after providing Client ten (10) days written notice of a delinquency in the payment of any invoiced amount if such amount is not paid during such ten (10) day period.
C. Suspension. Client acknowledges and understands that Client’s abuse or misuse of an Offering could adversely affect Supplier. Supplier reserves the right to limit or suspend Client’s use of each Offering in the event of any abuse or misuse of the Offering by Client, including, without limitation, any use that Supplier determines, at its sole discretion, may adversely affect Supplier.
D. Effect of Termination. Upon the termination of this Agreement:
(I) each party shall return the Confidential Information of the other party; however, a party may retain copies of documents or materials containing Confidential Information of the other party to satisfy reasonable record-keeping and archival purposes, including storage in back up media or other electronic data storage systems, provided that the party retaining such Confidential Information of the other party continues to abide by the confidentiality obligations provided in Section 8 (Confidentiality);
(II) all Devices provided to Client must be returned to Supplier within thirty (30) days following such termination or Client will be invoiced for the cost of that equipment, and Client hereby accepts responsibility for such payment;
(III) Client shall de-install (if applicable) and cease all use of Third Party Products, and any additional obligations of Client will be determined by the applicable agreement between Client and Manufacturer; and
(IV) the terms of Sections 5, 6, 7(d), 8, 10, 11, 15, 17 and 18 shall survive such termination.
11. Non-Hire Covenant.
A. The parties acknowledge that both parties are involved in highly strategic and competitive businesses. The parties further acknowledge that each party would gain substantial benefit and that the other party would be deprived of such benefit, if a party were to directly hire any personnel employed by the other party. Except as otherwise provided by law, each party shall not, without the prior written consent of the other party, solicit the employment of the other party’s personnel during the term of this Agreement and for a period of one (1) year following expiration or termination of this Agreement; provided, however, that nothing contained herein will prevent a party from hiring any such personnel of the other party who responds to a general hiring program conducted in the ordinary course of business or who approaches such party on a wholly unsolicited basis.
B. Client agrees that damages to Supplier resulting from breach by Client of this provision would be impracticable and that it would be extremely difficult to ascertain the actual amount of damages. Therefore, in the event Client violates this provision, Client shall immediately pay Supplier an amount equal to 25% of such personnel’s total annual compensation, as liquidated damages and Supplier shall have the option to terminate this Agreement without further notice or liability to Client. The amount of the liquidated damages reflected herein is not intended as a penalty and is reasonably calculated based upon the projected costs Supplier would incur to identify, recruit, hire and train suitable replacements for such personnel.
12. Insurance Coverage.
Supplier shall maintain at its sole expense during the term of this Agreement commercial general liability insurance for bodily injury and property damage for a per occurrence/aggregate limit of $1,000,000; worker’s compensation insurance as required by law; and hired and non-owned automobile liability insurance for the combined single limit of $1,000,000.
Each party hereby agrees to indemnify and hold the other party harmless from and against any and all third-party claims, demands, actions, losses, liabilities, costs and expenses (including reasonable attorney’s fees) arising out of or resulting from bodily injury (including death) as well as real and tangible personal property damage to the extent caused by a party’s negligence or willful misconduct, including all claims, damages, etc. arising from a party’s employees’ and agents’ activities at the other party’s facilities.
14. Successors and Assigns.
This Agreement, and all provisions hereof, shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto, provided that this Agreement may not be assigned by any party without the prior written consent of the other party hereto except that, upon notice to the other party, this Agreement may be assigned by either party to any of its affiliated entities or to any person or entity acquiring a material portion of the assets, business or securities of such party, whether by merger, consolidation, sale of assets or securities or otherwise.
A. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THIS AGREEMENT OR PERFORMANCE UNDER THIS AGREEMENT, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR IN TORT, AND IN THE CASE OF NEGLIGENCE, WHETHER SUCH NEGLIGENCE IS THE SOLE NEGLIGENCE OF THE PARTY AT FAULT OR OF ITS EMPLOYEES, AGENTS, OR CONTRACTORS, OR ARISES OUT OF THE CONCURRENT OR JOINT NEGLIGENCE OF THE PARTY OR OF ITS EMPLOYEES, AGENTS, CONTRACTORS AND OTHER PERSONS, AND WHETHER THE NEGLIGENCE BE CLASSIFIED AS GROSS, ACTIVE OR PASSIVE, AND WHETHER THE LIABILITY ARISES OUT OF AN UNINTENTIONAL OR INTENTIONAL ACT OR OMISSION, OR OTHERWISE.
B. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, THE MAXIMUM TOTAL AGGREGATE LIABILITY OF SUPPLIER AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, FOR ANY AND ALL LOSSES UNDER THIS AGREEMENT FOR DAMAGES RESULTING FROM ANY CAUSE WHATSOEVER UNDER ANY THEORY OF LAW (INCLUDING NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF CONTRACT, AND INFRINGEMENT) WILL NOT EXCEED THE AMOUNT PAID BY CLIENT TO SUPPLIER FOR APPLICABLE OFFERING FOR THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.
C. SUPPLIER ASSUMES NO RESPONSIBILITY FOR AND CLIENT FULLY RELEASES SUPPLIER FROM CLAIMS FOR APPLICATION FAILURES, DATA LOSS, OR OTHER HARM, INJURY OR DAMAGE SUFFERED AS A RESULT OF SOFTWARE BUGS OR INCOMPATIBILITIES, SPYWARE, COMPUTER VIRUS, HACKING, OR ANY OTHER UNAUTHORIZED SYSTEM ACCESS, SABOTAGE, OR INFORMATION THEFT. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE AN ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
16. Force Majeure.
Supplier shall not be liable for failure to perform any of its obligations under this Agreement during any period in which such performance is delayed by circumstances beyond Supplier’s reasonable control, such as, but not limited to fire, flood, or other natural disasters, or, embargo, court order, riot, or other intervention of any government authority, pandemic, or failure of any power or other utility source.
All notices herein provided for or which may be given in connection with this Agreement shall be sent via regular mail, postage prepaid, or by hand delivery. If any such notice shall be given by Client to Supplier, it shall be addressed to: Kevin A. Cook, and if given by Supplier to Client, such notice shall be addressed to the contact and address set forth in the applicable Sales Contract. All notices shall be effective upon receipt.
A. This Agreement shall be governed by the laws of the State of Delaware and constitutes the entire Agreement between Supplier and Client with respect to furnishing of Offerings hereunder. In the event of a conflict between the terms of this Agreement and a Sales Contract, the terms of the Sales Contract will govern for that Sales Contract only. No provision of the Agreement shall be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is in writing signed by the party against whom is sought to enforce the waiver, amendment or modification. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable. The relationship of the parties is that of independent contractors. Neither party will be deemed to be the legal representative of the other nor will it have any right to bind the other party to any contract or commitment. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement. This Agreement may be executed and delivered electronically.
B. Purchase orders will be for the sole purpose of defining quantities, prices and describing the Offerings to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected.
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