PLEASE READ THIS TERMS OF SERVICE AGREEMENT CAREFULLY.
This is a Terms of Service Agreement between you (“Client”) and us (T & T Computer Troubleshooters, Inc. d/b/a Cleartech Group or “Provider” or “CG”). It describes how we will work together and other aspects of our business relationship. It is a legal agreement so some of the language is necessarily “legalese”, but we have tried to make it as readable as possible.
WHEREAS, Provider is engaged in the provision of consulting services related to computer hardware, software, network configuration, operating systems and networks, database development, programming, and other similar work on an as-needed basis (the “General Consulting Services”)
WHEREAS, Client desires to engage Provider to perform the General Consulting Services, which shall be identified in one or more mutually executed Statements of Work, each of which shall incorporate this Agreement by reference (“a “SOW”), and the Provider has agreed to provide the General Consulting Services in accordance with the terms and conditions of this Agreement; and
WHEREAS, in the event Client desires Provider to provide Ongoing Managed Services, Client and Provider shall enter into the Managed Service Agreement hereto (the “MSA”), which shall incorporate this Agreement by reference.
NOW, THEREFORE, in consideration of the mutual premises contained in this Agreement, the Parties hereto hereby agree as follows:
1. Scope of Services. The Provider shall perform the Services on behalf of Client in accordance with the terms of the applicable SOW or the Term of Service Agreement, at a location or locations to be determined by the Provider in its sole discretion. A SOW or the Term of Service Agreement may only be modified by a written agreement signed by both parties in writing. Client shall compensate Provider the fees outlined in the Schedule of Fees attached as Schedule A hereto in consideration of Provider’s performance of General Consulting Services. Provider shall be compensated as outlined in the Term of Service Agreement in consideration of its performance of the Support Services.
2. General Purchase Terms.
(a) The base hourly rate for support services (the “Base Hourly Rate”) is set forth in Schedule A; note that Schedule A is provided to the client upon review of the terms and entering into agreement with the provider. The Base Hourly Rate is subject to adjustment in the event services are performed outside of regular weekday business hours or on an emergency basis, as further outlined in Schedule A. Provider shall notify Client of any changes to Schedule A no later than 30 days prior to the effective date of such changes and shall provide Client with an updated Schedule A to be appended hereto.
(b) Each request for onsite support services will be billed a minimum charge equal to one-half hour of support and billed in 15-minute increments thereafter for services exceeding one-half hour of support. Travel time to and from Client’s site shall be billable time. Remote support time will be billed in 15-minute increments.
(c) During the term of this Agreement, Client may elect to pre-purchase support time in blocks of 5, 10, 20, 50, (each a “Pre-Paid Block”) in consideration of the prices outlined in the Schedule A, as may be amended, which prices reflect a discounted hourly rate. Payment is due in full at the time of purchase of a Pre-Paid Block. A Pre-Paid Block is valid for 12 months from date of purchase. If Client does not utilize all the hours in a Pre-Paid Block in such 12-month term, the unused hours shall be forfeited, and the Client shall not be entitled to a refund for the same. (Notwithstanding the foregoing, if a Managed Service Agreement is in effect at such time, unused hours in a Pre-Paid Block may be carried forward and applied to amounts due under the Managed Service Agreement.) In the event work performed for Client ends up exceeding the hours remaining in a Pre-Paid Block, Client will be billed at the Base Hourly Rate for such additional time.
(d) All invoices issued by Provider are due and payable to Provider within the timeframe stated on the invoice (unless otherwise agreed to by the parties in writing). Payment may be delivered by cash, check, credit card or ACH or as otherwise may be set forth in the applicable invoice. Client shall notify Provider within ten (10) days of its receipt of an invoice of any disputed charges. All unpaid sums that are over 30 days in arrears and not in dispute shall bear interest at the rate of 1.5% per month. A $30.00 charge shall be assessed on each returned check. All merchandise remains the property of Provider until paid in full.
(e) All hardware is sold with a manufacturer’s warranty; Provider provides no additional warranty. All merchandise may be returned within 30 days. There is a 10% restocking fee on all items except special-order items. There is a 20% restocking fee on special-order items. Licensed software and all labor charges are not refundable.
(f) Quotations and responses to requests for quotations do not include the price of sales tax or shipping unless the same is explicitly stated in the same. Provider does not guarantee the price and/or availability of products and/or services quoted. Client is responsible for the cost of sales tax and charges associated with the shipping of all merchandise.
(g) Client acknowledges and agrees that Provider, acting in its sole discretion, may refuse to perform any requested General Consulting Services or any portion of the Managed Service Agreement, including, but not limited to, emergency services, in the event Client has a past due balance. Further, Client acknowledges that costs of collection, including reasonable attorneys’ fees, incurred by Provider in attempting to collect debt owed or otherwise enforcing the terms of this Agreement shall be borne by the Client.
3. Term and Termination.
(a) Term. The term of this Agreement shall commence on the Effective Date and shall remain in effect for the longer of the term of the applicable SOW and the term of the Term of Service Agreement, unless otherwise terminated in accordance with this Section 3.
(b) Termination for Convenience. Subject to the restrictions set forth in the Term of Service Agreement, if applicable, either party may terminate this Agreement for convenience by providing the other party with thirty (30) days’ advance notice of its desire to terminate the Agreement.
(c) Termination for Non-Payment. Provider may immediately terminate this Agreement in the event Client fails to pay any amounts due Provider hereunder.
(d) Survival. All accrued payment obligations, warranties by Client, and Sections 5, 6, 7, 8 and 11 shall survive the expiration or termination of this Agreement.
4. Client’s Representations and Warranties.
(a) Client shall allow Provider access and use of its facilities, equipment, servers, systems, and communications, with the understanding that such access and use is necessary in order for Provider to perform the Services.
(b) Client shall secure internet services from a third-party provider and shall bear all costs associated with such connectivity. Client acknowledges that Provider shall use such connection for remote diagnostics at no charge to Provider.
(c) Client warrants that all software owned or utilized by Client is properly licensed and that this Agreement will not violate any other licensing agreements or contracts with respect to the same. Client warrants and that all data backups are current and maintained per standard industry protocol.
(d) Client warrants that all information and materials supplied to Provider in connection with its performance of the Services shall be complete and accurate. Client agrees that Provider shall not be liable for any consequences resulting from Client’s withholding of information required for the performance of the Services, regardless of whether such withholding is done knowingly or unintentionally.
(e) Client warrants that Provider shall have the complete and timely cooperation of all key management of Client and that Client shall put into place a detailed management structure that will clearly outline for Provider which representatives of Client Provider shall work with and report to for each aspect of the Services provided.
5. Confidentiality.
(a) “Confidential Information” as used in this Agreement will mean any and all technical and non-technical information, including copyright, trade secret and proprietary information, techniques, models, inventions, know-
how, processes, apparatus, equipment, algorithms, software programs and code, and formulae relating to the business of each of the parties hereto and/or its customers, including, without limitation, price lists, supplier and vendor information, financial data, customer lists, business forecasts, business plans, sales and merchandising results and plans, and marketing plans. For the avoidance of doubt, Confidential Information does not include information, which is generally known, or which would be easily ascertainable by persons of ordinary skill in computer design, programming, networking, and information technology.
(b) Each party acknowledges that during the term of this Agreement that it may be supplied with Confidential Information of the other party or of third parties. Each party shall treat, protect, and safeguard as proprietary and confidential this Agreement and all Confidential Information disclosed to the other under this Agreement using at least as great a degree of care as used to maintain the confidentiality of its own most Confidential Information, but in no event less than a reasonable degree of care. Except with specific prior written authorization, each party shall not use, either directly or indirectly, any of the other party’s or a third party’s Confidential Information other than for the purpose for which it has been disclosed in connection with the performance of the Services. Each of the parties agrees that it will disclose the other party’s Confidential Information only to its employees who need to know such information, provided that such employees are bound by terms and conditions protecting such Confidential Information substantially similar to those of this Agreement. This obligation shall not extend to any information which becomes generally known to the public without breach of this Agreement. This obligation shall survive the termination of this Agreement.
(c) Both parties represent that the performance of all of the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge, or data of a third party and neither party will disclose to the other, or induce the other to use, any confidential or proprietary information belonging to third parties unless such use or disclosure is authorized in writing by such owners.
6. Limitation on Liability. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES PROVIDED BY PROVIDER ARE PROVIDED “AS IS” WITHOUT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCE WILL PROVIDER BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM SERVICES PROVIDED BY PROVIDER (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF EQUIPMENT, LOST DATA, COSTS OF REPLACEMENT HARDWARE OR SOFTWARE, AND OTHER COSTS AND DAMAGES) EVEN IF PROIVDER HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The liability of Provider shall be limited to direct damages, and such liability shall not exceed the amount paid by Client to Provider. Cleartech Group recommends the client seek or review existing commercial information technology and cyber security insurance liability protection coverage to protect themselves against such potential threats and damage.
7. Non-Solicitation of Employees. During the term of this Agreement and for a period of twelve (12) months after the termination thereof, Client shall not solicit, recruit, or employ any employee of Provider without the prior written consent of the President of Provider.
8. Independent Contractors. Provider and Client understand, acknowledge, and agree that the Provider’s relationship with the Client will be that of an independent contractor and nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, or employment relationship. It is expressly agreed and understood that as an independent contractor for the Client, Provider is neither an employee nor an agent of the Client. Provider will have sole control over the detailed method of performance of the Services, the manner and method of performing same being under the sole control and discretion of the Provider, and the Client’s only interest being in the results of such Services. Provider’s liability hereunder will be limited to payment of the compensation provided in this Agreement. Provider agrees to pay all applicable taxes, (including unemployment insurance, workman’s compensation, and old age benefits) which may arise as a result of this Agreement. The Client shall not provide retirement benefits, health insurance or any other fringe benefits to Consultant or any of Consultant’s employees or staff members. Provider will have no authority to act, to make any representation, to enter into any contract or commitment or to incur any liability on behalf of the Client. No tax (whether income, payroll or otherwise) shall be withheld or paid by the Client on behalf of Provider or Provider’s employees or other personnel. Neither Provider nor any of its personnel shall be treated as an employee of the Client with respect to the Services for federal or state tax or any other purposes. Provider shall properly withhold and pay all local, state, and federal income, payroll or other taxes, and all workers’ compensation, welfare, insurance, and other Provider benefits, payable to or on behalf of any person engaged to perform the Services hereunder.
9. Binding Agreement. The terms of this Agreement shall be binding upon and shall insure to the benefit of the parties and their respective heirs, executors, administrators, representatives, successors, and permitted assigns.
10. Assignment. Neither party will assign its rights or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, this Agreement may be unilaterally assigned by Provider to a third party in the context of transaction involving the sale substantially all the assets and/or stock of Provider or other change in control transaction.
11. Disputes. Any irreconcilable controversy, dispute, misunderstanding, or claim arising out of or relating to this Agreement shall be subject to litigation. The Client and Provider agree to the exclusive jurisdiction of any state or federal court located within the Commonwealth of Massachusetts. In the event of any dispute hereunder, the prevailing party shall be entitled to reasonable costs and fees incurred in prosecuting and/or settling such dispute, including reasonable attorneys’ fees.
12. Limit of Authority. The parties acknowledge that this Agreement does not constitute either party as the legal representative of the other for any purpose whatsoever. Neither party has authority to assume or create any obligation whatsoever, expressed, or implied, on behalf or in the name of the other party, nor to bind the other in any manner whatsoever.
13. Force Majeure. A party shall not be deemed to have defaulted or failed to perform hereunder if such party’s inability to perform or default shall have been caused by an event or events beyond the control and without the fault of the party, including, without limitation, acts of government (including government mandates restricting business operations), embargoes, fire, flood, explosions, acts of God or a public enemy, strikes, labor disputes, vandalism, civil riots or commotions, pandemic illness (including COVID-19) or the inability to procure necessary materials. Whenever an event of Force Majeure delays or threatens to delay either party’s performance hereunder, such party shall immediately give notice thereof to the other.
14. Use of Name. Nothing contained in this Agreement shall be construed as conferring any right to use in advertising, publicity, or other promotional activities any name, trade name, trademark, trade dress or other designation of either party hereto (including any contraction, abbreviation, or simulation of any of the foregoing), save as expressly stated herein. Each party hereto agrees not to use or refer to this Agreement or any provision hereof in any promotional or other activity without the express written approval of the other party.
15. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Client and Provider relating to the subject matter herein and supersedes all prior agreements, whether verbal or written, between them with respect hereto. No modification or amendment to this Agreement, nor any waiver of rights under this Agreement, will be effective unless evidenced in a writing signed by both parties.
16. Notices. Any notice, demand or request required or permitted to be given hereunder may be affected by personal delivery in writing, by email, or by mail, registered or certified, postage prepaid and return receipt requested. Notices delivered personally shall be deemed communicated upon actual receipt; emailed and mailed notices shall be deemed communicated three (3) days after the date of mailing. Mailed notices shall be addressed to the parties at the addresses set forth in the introductory paragraph hereof, but each party may change its address by written notice in accordance with this paragraph.
17. Applicable Law. This Agreement will be governed by, subject to, and construed in accordance with the laws of the Commonwealth of Massachusetts.