Outlining the responsibilities of Links Technology Solutions, Inc. and our client including services, response time, liability and payment.
This Managed IT Service Agreement (“Agreement”)
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 Service Description attached hereto as EXHIBIT A and incorporated herein by reference (collectively, the “Services”). The Parties acknowledge and agree that from time to time they may amend the Project Description or supplement this Agreement with a new Project Description. In each such case, the Project Description shall expressly reference this Agreement and be signed and dated by both Parties. Each such Project Description shall thereupon become subject to the remaining terms of this Agreement.
2. Service Level Agreement
CLIENT is entitled to priority response times as defined by the Service Level Agreement (“SLA”) attached hereto as EXHIBIT B and incorporated herein by reference.
3. Purchase Price
CLIENT is purchasing Links Technology Solutions Program Services under this Agreement for the purchase price outlined in Appendix A.3. Said purchase price shall be paid in monthly installments with the first installment due upon execution of this agreement. Each payment thereafter shall be due the first day of each calendar month.
Services provided hereunder shall be assessed against this Account as provided herein. Charges for Service Delivery Services shall be charged against the Account in accordance with the terms and conditions as outlined in Appendix A.3.
Any supplemental services provided by Links Technology Solutions which are outside the terms of this Agreement, including but not limited to, any maintenance provided beyond normal business hours and services more than the Account purchased herein, shall be charged to CLIENT as an additional charge in accordance with the terms and conditions as outlined in Appendix A.1. Any additional billing charges will be invoiced at the end of each month, with payment expected within thirty (30) days, unless otherwise specified by Links Technology Solutions. CLIENT shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, federal, state, or otherwise, however designated, which are levied or imposed by reason of the services provided pursuant to this Agreement. Without limiting the foregoing, CLIENT shall promptly pay to Links Technology Solutions an amount equal to any such taxes paid or required to be collected or paid by Links Technology Solutions. Links Technology Solutions reserves the right to refuse or suspend service under this Agreement in the event CLIENT has failed to pay any invoice within thirty (30) days of said invoice date, whether it be an invoice for services provided under this Agreement or any other agreement between the parties.
4. 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.
5. 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.
6. 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.
7. 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.
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.
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 the terms of this Agreement.
10. Limitation of Liability
Links’ total liability for damages, if any, arising in connection with this Agreement, shall not exceed the fees paid by CLIENT to Links under this Agreement 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 this Agreement may be brought against Links more than one year after it accrues.
11. 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 this Agreement 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.
12. Independent Contractor Status
Links shall be deemed an independent contractor of CLIENT for all purposes relating to this Agreement. This Agreement 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.
13. 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.
The initial term of this Agreement begins on the Effective Date, and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until one (1) year from such date (the “Initial Term”). This Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to this Agreement’s 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”).
In addition to any other express termination right set forth in this Agreement:
- Links may terminate this Agreement in the event CLIENT fails to pay Links’ invoices in accordance with terms of this Agreement;
- Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach:
- is incapable of cure; or
- being capable of cure, remains uncured 10 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
- either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party:
- becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;
- files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;
- makes or seeks to make a general assignment for the benefit of its creditors; or
- applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Upon expiration or earlier termination of this Agreement, CLIENT shall pay Links for all Services performed prior to the date of termination.
16. 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.
All notices under this Agreement 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.
Each Party represents that the person executing this Agreement on its behalf is fully authorized and empowered to do so, and that this Agreement constitutes a valid and binding obligation of said Party fully enforceable in accordance with its terms.
If any provision of this Agreement shall be held invalid, illegal or unenforceable, it shall be deemed stricken from this Agreement without in any way affecting or impairing the validity, legality and enforceability of any of the remaining provisions hereof.
20. Governing Law
This Agreement shall be governed by and construed in accordance with the internal laws of the State of Illinois.
Links may, with prior written consent of CLIENT, subcontract any of the Services required by this Agreement 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 this Agreement without the prior written consent of the other Party.
Prior to commencement of services hereunder, Links shall provide CLIENT with a certificate of insurance evidencing coverage for commercial general liability, worker’s compensation and automotive liability.
23. Entire Agreement
This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements, promises and representations by and between the Parties with respect to the subject matter hereof. This Agreement may not be amended or rescinded except by a written instrument signed by an authorized representative of each Party. Without limiting the generality of the foregoing, no term or condition contained in any purchase order of CLIENT that is inconsistent with this Agreement shall be binding upon Links, regardless of whether such purchase order has already been or is hereafter acknowledged by Links.