Terms of ServicesEngagement: Client hereby engages NexOne Technologies, LLC. to provide services in support of Client’s Network, Network Devices, Users and all IT services as specified in this document.
Scope of Included Services: The Provider will perform the IT Services included within the Scope of Included Services, as required, during the term of this Agreement. The Provider will decide whether to perform IT Services at the Service Address or off site. Client and Provider agree to follow all Terms as specified in this document including responsabilities to each as such.
Pricing; Additional Services: The Monthly Base Rate set forth above covers the cost of IT Services coming within the Scope of Included Services. Charges for additional services, if any, requested or required by Client will be determined by agreement of the parties or, in the absence of agreement, will be charged at Provider’s standard rates in effect at the time service is provided. The Base Rate does not include the cost of any hardware, software, equipment, or supplies or any out-of-pocket expenses incurred by Provider unless specifically identified as included in the Scope of Included Services.
Payment; Suspension or Termination of Services: Payment of the Monthly Base Rate is due on the specified date of each month during the term of this Agreement and shall be considered delinquent if unpaid within fifteen (15) days of the due date. Client shall pay invoices for any additional amounts due to Provider within fifteen (15) days after receipt. If payment is not received within those fifteen (15) days, the bill would fall into a delinquent status and will be assessed an additional $50 charge. If amount remains delinquent 30 days after its due date, an additional $100 penalty will be added for each month of deliquency. Provider shall have the right to suspend the performance of IT Services, or to terminate this Agreement with or without cause or if Client fails to make payment within the time permitted for doing so under this Agreement. Client shall have the right to terminate this Agreement, with or without cause, with thirty (30) days written notice to Provider. If this Agreement is terminated by Client without a thirty (30) days written notice, then Client shall pay Provider a Termination Fee of $150. If either party terminates this Agreement, Provider will assist Client in the orderly termination of services, including timely transfer of the services to another designated provider. Client agrees to pay Provider the actual costs of rendering such assistance.
Price Adjustments: The Provider shall have the right to propose an adjustment to the Monthly Base Rate, as provided on Schedule C, in the event of equipment purchases, substantial changes in the demand for IT Services initiated by Client, material increases in costs to Provider, or if Client’s demand for IT Services during any twelve-month period during the term of this Agreement should exceed the Adjustment Threshold. When an adjustment occurs, an addendum detailing the change, will be signed by both parties and attached to this contract.
Use of Software: Authorization to use any software provided by Provider to the Client provides a personal, non-exclusive, limited, non-transferable and temporary license. All rights are reserved. The Client may not re-publish, transmit, or distribute the software, or make any unauthorized use of Provider materials. Modification of such materials or the use of such materials for any purpose not authorized by Provider is prohibited.
Ownership of Work Product: Any (a) work of authorship fixed in any tangible medium of expression that is the subject matter of a copyright or potential application for registration therefore (including, but not limited to, object code and source code), (b) unpatented inventions, including but not limited to, physical parts or components, processes, techniques, programs or methods, (c) non-trademarked or non-service-marked distinctive symbols, pictures or words, (d) trade secrets, or (e) any other copyrightable, patentable and/or trademarkable intellectual property rights, whatsoever, associated with any ideas, symbols, marks, phrases, writings, drawings, inventions, machines, designs, concepts, techniques, methods, know-how, processes or works of authorship developed or created by: (i) Provider and/or Provider Personnel; and/or (ii) through collaborative efforts of Provider (including Provider Personnel) and Client and/or any director, officer, shareholder, member, manager, employee, agent, independent contractor or representative of Client (“Client Personnel”) during the term of this Agreement (collectively, the "Work Product") shall belong to the Provider; provided that Client shall retain a perpetual, non-exclusive, royalty-free license to use the Work Product in its day to day business operations so long as Client does not disclose, sell or assign, in any capacity, its rights in said Work Product, to any third party (including Provider Personnel and Client Personnel) without the express, written consent of Provider, which consent may be withheld. Upon request of Provider, Client shall, if necessary, take such actions, and shall cause Client Personnel to take such actions, including execution and delivery of any and all instruments of conveyance, necessary to grant title in and to the Work Product to and in the name of Provider.
Non-Diversion. Client agrees that during the term of this Agreement and for a period of one year following the termination of this Agreement, Client will not recruit or hire any employee, agent, representative or subcontractor of the Provider (“Provider Personnel”), nor will Client directly or indirectly contact or communicate with Provider Personnel for the purpose of soliciting or inducing such Provider Personnel (a) to accept employment with, or perform work for any person, firm, or entity other than Provider; or (b) to provide services to Client or any other person, firm or entity except as an employee or representative of the Provider. Client agrees that, in the event of a breach or threatened breach of this provision, in addition to any remedies at law, Provider, without posting any bond, shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available.
Disclaimer of Warranties. IT Services furnished under this Agreement are provided "as is" and, unless otherwise expressly stated in this instrument, without representations or warranties of any kind, either express or implied. To the fullest extent permitted by law, Provider disclaims all warranties, express, implied or statutory, including, but not limited to, implied warranties of title, non-infringement, merchantability, and fitness for a particular purpose. Provider does not warrant that use of software or products furnished by provider will be uninterrupted, error-free, or secure, that defects will be corrected, or that products or the server(s) to which access is provided are free of viruses or other harmful components.
Limitation of Liability. In no event shall Provider be liable to the Client or any other party for any special, exemplary, incidental or consequential damages, including but not limited to lost profits, whether arising out of contract, tort, strict liability or otherwise.
Actions.: No action, regardless of form (including in contract, tort or otherwise), arising in connection with the performance of this Agreement may be brought by either party more than one (1) year after the date of the occurrence on which the action is based.
Good Faith. The parties hereto expressly assume an obligation to act in good faith toward one another in the performance of their obligations under this Agreement
Miscellaneous. This instrument, with attached exhibits, contains the entire agreement of the parties and supersedes any previous agreement on the same subject matter between them. No amendments or variations of the terms and conditions of this agreement shall be valid unless the same are in writing and signed by all parties hereto. Provider is an independent contractor and nothing herein shall be construed as inconsistent with that relationship or status. If any one or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions hereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had not been contained herein. Provider shall not be liable to Client for any failure or delay caused by events beyond Provider's control, including, without limitation, Client's failure to furnish necessary information, sabotage, failures or delays in transportation or communication, failures or substitutions of equipment, labor disputes, accidents, shortages of labor, fuel, raw materials, or equipment, or technical failures, or accessibility to work site. The headings contained herein are for convenience of reference only, and are not to be used in interpreting this agreement. This agreement shall be construed and enforced pursuant to the laws of the State of Illinois. This agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one document.