Managed Services Agreement

The following terms and conditions shall apply to all quotations, purchase orders, order acknowledgments and other documents, dealings and transactions relating to CLIENT’s purchase and use of managed IT services from LINKS TECHNOLOGY SOLUTIONS, INC., an Illinois corporation with offices at 440 East State Parkway, Suite 220, Schaumburg, IL 60173 (“Links”).  Client’s ordering, acceptance or use of any services from Links shall constitute its acceptance of the following terms and conditions. (Links and Client, each a “Party” and collectively, the “Parties”).  Capitalized terms not otherwise defined herein shall have the meaning given to them in the Managed Service Description between Links and CLIENT.

1. Services

CLIENT hereby retains Links to provide, and Links hereby agrees to provide, the managed information technology services to support and maintain the operational status of CLIENT’s computers, servers and network equipment as described in the Managed Service Description provided by Links to CLIENT and incorporated herein by reference (collectively, the “Services”). The Parties acknowledge and agree that from time to time they may amend the Managed Service Description with a new Managed Serve Description. In each such case, the Managed Service Description shall expressly reference these Terms and Conditions and be signed and dated by both Parties. Each such Managed Service Description shall thereupon become subject to these Terms and Conditions.

2. Purchase Price

CLIENT is purchasing Links Technology Solutions Program Services under these Terms and Conditions for the purchase price outlined in Appendix A.3 of the Managed Service Description. Said purchase price shall charged against CLIENT’s account for the Services and be paid in monthly installments with the first installment due upon execution of the Managed Service Description. Each payment thereafter shall be due the first day of each calendar month. Any maintenance provided beyond normal business hours and any supplemental services provided by Links which are outside the terms of Managed Service Description, shall be charged to CLIENT as an additional charge in accordance with the terms and conditions as outlined in Appendix A.1 to the Managed Service Description and invoiced at the end of each month, with payment expected within thirty (30) days, unless otherwise specified by Links. CLIENT shall, in addition to the other amounts payable in accordance with these Terms and Conditions, promptly Links an amount equal to all sales and other taxes, federal, state, or otherwise, however designated, which are levied or imposed by reason of the Services provided.

3. Unavailability of Equipment

During Links’ provision of the Services, including but not limited to both maintenance and troubleshooting, CLIENT’s equipment, including servers, computers, printers, copiers, and the like, may become unavailable to CLIENT. Links shall have no liability for such unavailability. When foreseeable, Links will contact CLIENT to schedule an agreeable time for Links to perform maintenance that is expected to result in down time.

4. Backups and Data Loss

If the Services include Managed Backups for Servers or Workstations, Links will schedule backups at specified intervals and will use industry-accepted software and procedures to make the backed-up data accessible and available for recovery and restoration in the event of data loss. If a scheduled backup is found to have failed, Links will use commercially reasonable efforts to remediate the problem. CLIENT acknowledges that Links does not guarantee that backups will be successful or that no data will be lost.

5. Limited Warranty Regarding Third Party Products

CLIENT acknowledges that Links may supply CLIENT with third-party equipment, software, tools, products or materials (“Third Party Products”) as part of Links’ provision of the Services.  All Third-Party Products will be subject to the terms of any warranty provided by the owner, manufacturer or distributor of the Third-Party Products, and Links shall pass through to CLIENT any such warranties to the extent permitted.  LINKS EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD-PARTY PRODUCTS, INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. Notwithstanding the foregoing, Links will cooperate with CLIENT in CLIENT’s efforts to exercise any rights it may have under any applicable warranties for Third Party Products.

6. Disclaimer of All Other Warranties

CLIENT ACKNOWLEDGES AND AGREES THAT, WITH THE SOLE EXCEPTION OF THE FOREGOING LIMITED WARRANTIES, LINKS HAS NOT MADE AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, WHETHER VERBAL OR WRITTEN, EXPRESS OR IMPLIED, CONCERNING ANY SERVICES OR PRODUCTS THAT MAY BE PROVIDED BY LINKS OR ANY THIRD-PARTY PRODUCTS.  LINKS SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES CONCERNING THE SERVICES AND PRODUCTS AND THIRD-PARTY PRODUCTS, WHETHER VERBAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL REPRESENTATIONS AND WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE OR USE.

7. Confidentiality

Except as reasonably required to perform the Services, Links shall not use or disclose, and shall undertake reasonable efforts to prevent the use or disclosure by any of its personnel, of any legal, financial, statistical, technical, strategic, marketing, sales, personnel, or other proprietary or confidential data of CLIENT disclosed to Links during the performance of the Services.

8. Indemnification

CLIENT agrees to defend, indemnify and hold Links harmless from any and all claims, demands, causes of action, judgments, liabilities, penalties, fines, costs and expenses (including reasonable attorneys’ fees and court costs) arising from or relating to a breach by CLIENT of any of these Terms and Conditions.

9. Limitation of Liability

Links’ total liability for damages, if any, arising in connection with these Terms and Conditions, shall not exceed the fees paid by CLIENT to Links under these Terms and Conditions for the specific Services in dispute, regardless of whether any such claim arises in or under contract or statute. LINKS SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCE, FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF ANTICIPATED REVENUES OR PROFITS, LOSS OR DESTRUCTION OF DATA, EQUIPMENT DOWNTIME OR OTHER INTERRUPTION OR LOSS OF USE OF EQUIPMENT, OR DAMAGES RESULTING FROM CLAIMS FOR COMMERCIAL LOSS BROUGHT AGAINST CLIENT BY OTHER PERSONS.  No cause of action arising in connection with these Terms and Conditions or the provision of Services pursuant to the Managed Service Description may be brought against Links more than one year after it accrues.

10. Force Majeure

Neither Links nor CLIENT shall be liable for any delay, failure or inability to perform its obligations (except the obligation to make payments) under these Terms and Conditions or the Managed Service Description due to any cause beyond its reasonable control, including, but not limited to, fires, floods, storms, explosions, accidents, civil disturbances, equipment breakdowns, utility failures, transportation or shipping delays, or unavailability of personnel due to disability, leaves or other reasons.

11. Independent Contractor Status

Links shall be deemed an independent contractor of CLIENT for all purposes relating to these Terms and Conditions and the Managed Service Description.  Neither these Terms and Conditions nor the Managed Service Description shall not be deemed to create a partnership, joint venture or agency relationship between the Parties, and Links shall not hold itself out as having any authority to bind or otherwise make commitments on behalf of CLIENT.

12. Non-Solicitation of Personnel

Links and CLIENT acknowledge and agree that each Party has expended substantial time and expense in the identification, retention, education and training of its personnel.  Accordingly, each Party agrees that it will not, either directly or indirectly, during the performance of the Services or for a period of 12 months thereafter, solicit, offer employment to, hire or otherwise retain any personnel of the other Party.  In the event that either Party breaches this provision, the defaulting Party shall immediately pay the non-defaulting Party liquidated damages equal to the greater of (a) 500 hours at said person’s regular hourly billing rate, or (b) 30% of said person’s annualized compensation upon being hired or otherwise retained by the defaulting Party.  Both Parties acknowledge and agree that said liquidated damages are reasonable in amount and not a penalty.  All such liquidated damages shall be lieu of any and all other available rights and remedies, and shall be the sole and exclusive remedy of the non-defaulting Party for breach of this provision.

13. Term

The initial term of these Terms and Conditions and the provision of the Services begins on the execution of the Managed Service Description, and, unless terminated earlier pursuant to these Terms and Conditions’ express provisions, will continue in effect until one (1) year from such date (the “Initial Term”). These Terms and Conditions and the provision of the Services will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to these Terms and Conditions’ express provisions or either Party gives the other Party written notice of non-renewal at least Ninety (90) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).

These Terms and Conditions and the provision of the Services will automatically renew for additional successive one (1) year terms with an annual increase of at least 10% to the base fee, unless earlier terminated pursuant to these Terms and Conditions’ express provisions or either Party gives the other Party written notice of non-renewal at least Ninety (90) days prior to the expiration of the then-current term(each a “Renewal Term” and together with the Initial Term, the “Term”).

14. Termination

In addition to any other express termination right set forth in these Terms and Conditions:

Upon expiration or earlier termination of these Terms and Conditions or the provision of Services, CLIENT shall pay Links for all Services performed prior to the date of termination.

15. Finance Charges and Attorneys’ Fees

If CLIENT does not pay, on a timely basis, fees and expenses due Links, CLIENT shall be liable for finance charges at the rate of 18% per annum on the unpaid balance thereof, as well as all costs of collection, including Links’ reasonable attorneys’ fees.

16. Notice

All notices under these Terms and Conditions and the Managed Service Description shall be made in writing and shall be deemed to have been given if personally delivered, transmitted by facsimile or e-mail during regular business hours, or mailed by certified mail, postage pre-paid, return receipt requested, to the other Party at its address set forth above or to such other address as said Party may hereafter designate in writing.

17. Invalidity

If any provision of these Terms and Conditions shall be held invalid, illegal or unenforceable, it shall be deemed stricken from these Terms and Conditions without in any way affecting or impairing the validity, legality and enforceability of any of the remaining provisions hereof.

18. Governing Law

These Terms and Conditions and the provision of Services pursuant to the Managed Service Description shall be governed by and construed in accordance with the internal laws of the State of Illinois.

19. Assignment

Links may, with prior written consent of CLIENT, subcontract any of the Services to qualified personnel, provided that Links shall remain liable for the oversight, performance and work product of such personnel.  Subject to the foregoing, neither Party may assign or transfer its rights or obligations under these Terms and Conditions or the Managed Service Description without the prior written consent of the other Party.

20. Entire Agreement

These Terms and Conditions and the Managed Service Description constitute the entire agreement between the Parties and supersede all prior agreements, promises and representations by and between the Parties with respect to the subject matter hereof.  LINKS may amend theses Terms and Conditions at any time without notice to CLIENT.  Without limiting the generality of the foregoing, no term or condition contained in any purchase order of CLIENT that is inconsistent with these Terms and Conditions or the Managed Service Description shall be binding upon Links, regardless of whether such purchase order has already been or is hereafter acknowledged by Links.  To the extent these Terms and Conditions conflict with the Managed Service Description, these Terms and Conditions shall control.