TECHPROTECT

TECHNOLOGY SUPPORT AGREEMENT

ADDITIONAL TERMS AND CONDITIONS

Last updated July 27, 2023

 

TECHNOLOGY BY DESIGN TECHPROTECT AGREEMENT

This TechProtect Agreement ("Agreement") is established as of the date stated, between the client (hereinafter referred to as 'Client') and Technology By Design, LLC (hereinafter referred to as 'Company'). The precise locations of the Client and Company are as stipulated in the original contract document.;

WHEREAS, Company is a provider of Technology Support, Security and Networking solutions;

WHEREAS, Client desires to contract with Company for the provision of Technology Support, Security and Networking solutions (the “TechProtect Services” or “Services”);

NOW THEREFORE, for and in consideration of the premises contained herein and good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:

PERIOD OF SERVICE

This Agreement shall be effective as of the date of this Agreement, execution by Client and shall be for an initial term of Twelve (12) months from the commencement of actual Services.

CONTINUANCE / AUTOMATIC RENEWAL

This Agreement shall renew automatically at the end of the prior Agreement term for a period of twelve months (12) unless Company or the Client affirmatively modifies or terminates it in accordance with the conditions set forth in this Agreement.

EQUIPMENT COVERED

Company reserves the right to renegotiate rates based on additions of locations, hardware, software, hardware support requirements, and/or services as well as modify this Agreement (or any portion thereof) with a 30-day notice. For purposes of this Agreement, the Network shall include all locations as outlined in Appendix A. In addition, this agreement is based on services provided to those devices listed in Appendix B. Any additional devices added to the network without the consent or acknowledgement of Company will not be honored or supported under this agreement.

PURCHASE PRICE

Client is purchasing TechProtect Services under this Agreement for the purchase price outlined above. Purchase price shall be paid in monthly installments with the first installment due upon execution of this agreement. Based on the estimated date the Services will begin the initial monthly charge may be prorated (based on 31 days per month). Subsequent monthly charges will be invoiced on or near the eighth (8th) of each month. Services provided hereunder shall be assessed against this Account as provided herein. Prices are subject to change with a thirty (30) day written notice.

CHARGES FOR SERVICE

a) Services shall be charged against the Account in accordance with the terms and conditions as outlined.

b) Any supplemental services provided by Company which are outside the terms of this Agreement, including but not limited to, any maintenance provided beyond normal business hours and services in excess of the Account purchased herein, shall be charged to Client as an additional charge in accordance with the terms and conditions as outlined. Any additional billing charges will be invoiced at the end of each month, with payment expected within twenty (20) days, unless otherwise specified by Company.

c) Client shall, in addition to the other amounts payable under this Agreement, promptly 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 pay to Company an amount equal to any such taxes required to be collected or paid by Company on behalf of Client.

d) Company 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 invoice date, whether it is an invoice for services provided under this Agreement or any other agreement between the parties.

SERVICE EXPECTATIONS

In addition to other expectations, limitations and conditions set forth in this Agreement, the following service and support limitations are expressed:

a)  Cost of consumables, replacement parts, hardware, software, network upgrades and associated services are outside the scope of this Agreement. Company will provide consultative specification, sourcing guidance and/or Time and Material / Project offerings.

b)  Manufacturer warranty parts and labor/services are outside the scope of this Agreement.

c)  Periodic reboots for such devices as firewalls, routers, and servers are required to apply/activate critical update patches and configuration changes. Company’s Services within this Agreement are predicated upon the Client’s support and commitment to providing time/scheduling for network device reboots with its staff and/or users.

d)  Virus mitigation within the scope of this Agreement is predicated on Client satisfying recommended backup schemes and having appropriate cyber-security software with current updates.

e)  Restoration of lost data caused by systems / hardware failure is outside the scope of this Agreement.

f)  This Agreement and Services herein are contingent on Client’s permission of Company having secure remote access into Client’s network via VPN or other solution expressly approved by Company. Depending on the remote access solution used, additional charges may apply to the contract. For Services requested by the Client outside of normal business hours, Company shall provide such Services according to the terms and conditions set forth in this Agreement.

g)  All Services defined in this Agreement shall be provided during regular business hours, unless otherwise specified. Company shall monitor, advise, and provide supplemental services as defined in this Agreement during normal business hours, unless otherwise specified. Company shall provide scheduled remote and onsite support services in accordance with this Agreement. Company representatives shall have and the Client shall provide full access to the Network in order to affect the necessary Services and/or supplemental third party services.

HOLIDAYS OBSERVED - Unless otherwise stated no response provided on these days:

✓  New Years Eve                                                        ✓  New Years Day

✓  Memorial Day                                                         ✓  July 4th

✓ Labor Day                                                                ✓ Thanksgiving

✓ Day After Thanksgiving                                           ✓ Christmas Eve

✓ Christmas Day

WARRANTIES AND DISCLAIMERS

Company makes and the Client receives no warranty, express or implied, and all warranties of merchantability and fitness for a particular purpose are expressly excluded. In no event shall Company or any of its Directors, Employees or Other Representatives be for any special, incidental, indirect, or consequential damages of any kind including, without limitations, those resulting from loss of data, income, profit, and on any theory of liability, arising out of or in connection with the Services or use thereof even if it has been advised or has knowledge of the possibility of such damages. All other warranties, express or implied, including any warranties of title, merchantability, or fitness for any particular purpose, are specifically excluded and disclaimed by Company. Company does not warrant that any product or Service will meet Client’s requirements or that it will be uninterrupted or error free. In no event will Company be liable to Client or any other person for any lost profits, lost savings, lost data or special, consequential, punitive or incidental damages, whether arising out of or relating to this Agreement or any Service furnished or to be furnished under this Agreement or otherwise, even if Company has been advised of the possibility of such loss or damage. Company’s aggregate liability arising out of or relating in any way to this Agreement or any product or Service provided under this Agreement is absolutely limited to the amount paid by Client to Company under this Agreement during the three (3) months immediately preceding such claim. The Client shall assume full responsibility for the overall effectiveness and efficiency of the operating environment in which the Network is to function.

CONDITIONS OF SERVICE

The Client Network (“Network”) is eligible for monitoring and support under this Agreement provided it is in good condition and Company serviceability requirements and site environmental conditions are met. Company reserves the right to inspect the Network upon the commencement of the term of this agreement. Company shall not be responsible to Client for loss of use of the Network or for any other liabilities arising from alterations, additions, adjustments or repairs which have been made to the Network other than by authorized representatives of Company. Company reserves the right to suspend or terminate this Agreement if in its sole discretion, conditions at the service site pose a health or safety threat to any Company representative.

INDEMNIFICATION

The Client and Company hereby agree to indemnify and defend one another at one another’s sole expense: including employees, agents, representatives, directors and shareholders, from and against any and all claims arising out of or based upon one another’s use of all Services, software or hardware provided or serviced hereunder, including, but not limited to, claims based on software licensing violations, copyright infringement, trademark infringement, patent infringement, or data loss. In addition, Client and Company agree to pay any judgment and costs associated with such claim if levied against them.

OPT-OUT/TERMINATION

Company and/or Client shall have the right to terminate this Agreement under any of the following conditions:

a)  Immediately if one of the parties shall be declared insolvent or bankrupt or; a petition is filed in any court and not dismissed in ninety days to declare one of the parties bankrupt and/ or for a reorganization under the Bankruptcy Law or any similar statute or; if a Trustee in Bankruptcy or a Receiver or similar entity is appointed for one of the parties.

b)  If the Client does not pay Company within thirty (30) days from receipt of invoice and/or otherwise materially breaches this Agreement.

c)  If Company fails to perform its obligations under this Agreement and such failure continues for a period of thirty days after written notice of the default.

d)  Either party may terminate this Agreement upon thirty days (30) written notice.

Upon termination, all hardware and software installed by Company that was required to conduct the Services are the property of Company and will be removed, surrendered and returned to Company at end of the agreement.

INDEPENDENT ENGAGEMENT / NON-HIRE

Because employees are one of our most valuable assets, Company policy and professional ethics require that our employees not seek employment with, or be offered employment by any Client during the course of engagement and for period of one (1) year beyond the last date that Services were provided by Company to the Client. This Agreement confirms your organizations agreement to adhere to this professional standard of conduct. Client further acknowledges that Company is involved in a highly strategic and competitive business. Client acknowledges that Client would gain substantial benefit and that Company would be deprived of such benefit, if Client were to directly hire any personnel employed by Company except as otherwise provided by law, Client shall not, without the prior written consent of Company, solicit the employment of Company personnel during the term of this Agreement and for a period of one (1) year beyond the last date that Services were provided by Company to the Client.

CONFIDENTIALITY

This Privacy, Compliance, and Confidentiality section is in addition to other terms and conditions set forth in any and all contracts currently existing or hereafter created between Client and Company. This Agreement shall under no circumstances be deemed to alter any such contract except as specifically provided below.

Company acknowledges that in the course of providing services to Client, Company may learn from Client certain nonpublic, personal and otherwise confidential information relating to Client, including Clients’ customers and/or employees. Company shall regard any and all information it receives which in any way relates or pertains to Client, as confidential. Company shall take commercially reasonable steps to not disclose, reveal, copy, sell, transfer, assign, or distribute any part or parts of such information in any form, to any person or entity, or permit any of its employees, agents, or representatives to do so for any purpose other than purposes which serve Client or as expressly and specifically permitted in writing by Client or as required by applicable law. Client acknowledges that it also has responsibility to keep records and information of its business confidential.

Client also acknowledges that all information and services, consulting techniques, proposals, and documents disclosed by Company or which comes to its attention during the course of business and provided under this agreement constitute valuable assets of, and confidential and/or proprietary to Company. These Confidentiality provision shall survive termination of this Agreement and any other agreements between Client & Company.

GENERAL PROVISIONS

a)  Sole Agreement: This Agreement constitutes the entire and only understanding and agreement between the parties hereto with respect to the subject matter hereof and, except as expressly set forth herein, and may only be amended in writing signed by each of the parties hereto.

b)  Severability: If a court of competent jurisdiction determines that any terms or provision of this Agreement are invalid or unenforceable; such determination shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement, which shall continue to be given full force and effect.

c)  Captions: The captions of the paragraphs of this Agreement are for convenience only and shall not affect in any way the meaning or interpretation of this Agreement or any of the provisions hereof.

d)  Binding Effect: This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their heirs, legal representatives, personal representatives, administrators, successors, and permitted assigns, as the case may be.

e)  Waiver: Any failure of either party to comply with any obligation, covenant, agreement, or condition herein may be expressly waived, but only if such waiver is in writing and signed by the other parties. Any such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement, or conditions shall not operate as a waiver of and/or set precedence with respect to any subsequent and/or other failure.

f) Governing Law: Not withstanding the place where this Agreement may be executed by any party, this Agreement, the rights and obligations of the parties, and any claims and disputes relating hereto shall be subject to and governed by the laws of the State of Minnesota as applied to agreements among Minnesota residents to be entered into and performed entirely within the State of Minnesota, and such laws shall govern all aspects of this Agreement. The parties agree to submit to the personal jurisdiction and venue of the state and federal courts in the State of Minnesota, in the Judicial Circuit where Company has its principal office, for resolution of all disputes and causes of action arising out of this Agreement, and the parties hereby waive all questions of personal jurisdiction and venue of such courts, including, without limitation, the claim or defense therein that such courts constitute an inconvenient forum.

g)  Assignment: This Agreement and the rights and duties hereunder shall not be assignable by either party hereto except upon written consent of the other.

h)  Force Majeure: Company shall not be liable for any problems due to external causes beyond its control including, but not limited to, terrorist acts, natural catastrophe, fire, flood, or other act of God, and/or power failure, virus propagation, improper shut down of the Network and related Network Systems / Services.

i)  Data Protection. Company shall not be liable under any circumstance for any data loss. It is the Client’s sole responsibility to have an adequate backup and recovery system in place.

j)  Attorneys' Fees. In any action between the parties to enforce any of the terms of this Agreement, the prevailing party shall be entitled to recover all expenses, including reasonable attorneys' fees.

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