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IT MANAGED SERVICES TERMS & CONDITIONS
AGREEMENT, RELEASE AND WAIVER
This Agreement is by and between TOCI, LLC, dba as TCI (“TCI”) and Client, as identified in the separate quote previously provided by TCI to Client (the “Quote”). TCI and the Client are sometimes referred to herein individually as “Party” and collectively as the “Parties”.
By signing the Quote, Client expressly acknowledges and agrees that Client (a) has carefully read this Agreement and understands its contents; (b) has had the opportunity to discuss this Agreement with an attorney before signing it; (c) enters into this Agreement knowingly and voluntarily and was not subjected to any undue influence or duress; and (d) agrees to abide by all terms and provisions set forth herein.
During the Contract Term, TCI will provide Client with the Managed IT Services (“Services”) set forth in the Quote
2. DUTIES OF THE PARTIES.
A. DUTIES OF TCI
TCI agrees to use commercially reasonable efforts to timely deliver and support the Services for Client in accordance with industry standards.
B. DUTIES OF CLIENT
Client agrees to (i) timely submit all payments, in immediately available U.S. currency, to TCI at TCI’s place of business; (ii) provide TCI with access to Client’s facilities, including access to Client’s computer systems, according to the Client’s procedures which shall be provided to TCI in writing and prior to the commencement of the Services, and adequate and suitable facilities and space for TCI’s personnel to work at the Client’s facility and on such computer systems. If TCI determines that the Services require TCI to remotely access Client’s computer systems, Client agrees that it shall also provide TCI with all the information requested by TCI for TCI to remotely access Client’s computer systems. Client also acknowledges and understands that the provision of the Services may, in some circumstances result in the disruption of business operations at Client’s facility or on Client’s computer systems or loss or damage to software or hardware.
3. PRICINGThe fees (“Fees”) for Service Offerings are set forth in the Quote. The hourly rates for Excluded Services will be billed at TCI’s then applicable prevailing rates, which may change from time to time. Fees are subject to an annual increase of the greater of (i) three percent (3%), or (ii) the annual increase in the Consumer Price Index (CPI) as calculated by the Bureau of Labor Statistics at the time of renewal of the Contract Term (the “Renewal Date”). The price increase will occur with the first billing cycle after the contract anniversary date (one year from the Effective Date and from each subsequent Renewal Date). TCI reserves the right to increase the fees for individual underlying software and monitoring at any time during the Contract Term only in the event that there is a manufacturer or vendor increase for licensed products deployed during the Contract Term. TCI performs a comprehensive network assessment prior to issuing a the Quote. If we are unable to complete a full assessment, have not been advised of specific requirements or network conditions that may affect the Quote, we reserve the right to modify the fees included in the Quote accordingly upon commencement of network management. Fees for support and licensing based on User Counts (“User Counts” is defined as fees for support and licensing based on the number of authorized concurrent users specified for the licensed product(s)) shall remain the same, but user counts may be adjusted upward or downward as necessary to accommodate Client business changes in headcount. Costs for offboarding and transition are not included in the fees set forth in the Quote.
TCI will invoice Client on a monthly basis per the Fees set forth in the Quote for Service Offerings. Payments for all Service Offerings shall be made via automatic draft using ACH or credit card and are due on or before the fifth (5th) day of the month. Payments made with a credit card shall include an additional 3% service charge. Payment for all Excluded Services provided to Client by TCI are due upon receipt of TCI’s written or electronic invoice(s) for such Excluded Services. TCI reconciles client accounts at least quarterly and adjusts monthly invoices as needed, with fee increases subject to Client’s written approval. TCI will have no obligation to perform any services for Client, whether included in this Agreement or otherwise, unless all charges, fees, and taxes for Services rendered under this agreement have been paid in full by Client when due. In the event of non-payment of any sum due and owing under this Agreement, TCI shall have the right to suspend or immediately terminate the providing of all Services, without notice, and TCI may determine whether or not to reinstate any Services upon receipt of payment in full of all sums owed. Any payment not received by TCI on or before thirty (30) days following the due date shall bear interest from the due date until paid in full at the lesser of two percent (2%) per month or the maximum rate allowed by applicable law. All amounts shall be payable by Client to TCI without right of setoff, deduction, or demand.
5. TERM AND TERMINATION
This Agreement shall be effective for the term stated on the Quote (the “Contract Term”), commencing on the date this Agreement is executed by Client and accepted and executed by TCI (“Effective Date”), and shall automatically renew for additional one-year periods on each anniversary of the Effective Date. The initial term period and each one-year period of this Agreement (or such shorter or longer period of effectiveness as mutually agreed to by TCI and Client) is referred to as an “Effective Period” and collectively all of the Effective Periods of this Agreement are referred to as the “Term”. Either Party may terminate this Agreement at any time by providing at least three (3) months (“Notice Period”) prior written notice to the other Party. Client acknowledges and agrees that Client is responsible to pay and shall pay monthly Fees for Service Offerings during the Notice Period, regardless if Client requests not to receive such Service Offerings during the Notice Period and if Client requests not to receive such service offerings during the Notice Period then the monthly fees shall be at the same monthly amount as the average of the three (3) month period immediately preceding the notice of termination. TCI may immediately terminate this Agreement upon written notice to Client if Client (i) fails to make any payment to TCI when due and such failure continues for a period of five (5) business days following written notice of such failure by TCI to Client; or (ii) breaches any other provision of this Agreement. Immediately upon the expiration or termination of this Agreement, or upon the earlier request of one of the Parties, the other Party shall (i) return to the other any and all equipment and material provided by the other Party; and (ii) discontinue the use of and permanently delete from the Party’s computer systems any and all of the other Party’s software and other computer programs installed or provided by the other Party. The Party responsible for permanently deleting the other Party’s software and other computer programs shall, upon written request of the other Party, provide the other Party with commercially reasonable evidence and proof that they have fully complied with the requirements herein.
All materials, including all copyrights, trademarks, logos and other identifying marks (collectively “Materials”) of each Party are and shall remain the exclusive property of that Party, and except as otherwise specifically set forth in this Agreement, no license to use such Materials is granted pursuant to this Agreement. All Materials are proprietary and may not be reproduced, duplicated or disseminated for any purpose. All non-third party software installed or provided by one of the parties for the other Party’s use is proprietary software and the exclusive property of installing Party. Any hardware deployed and billed as part of a monthly service contract shall remain the property of TCI and must be returned within five (5) business days upon cancellation of the agreement.
7. CONFIDENTIAL INFORMATION
Pursuant to providing the Services, either Party may gain access to the other Party’s Confidential Information. Each Party will adopt commercially reasonable measures to protect the other Party’s Confidential Information provided pursuant to this Agreement. For purposes of this Agreement, “Confidential Information” means: All inventions, processes, designs, trade secrets, formulas and formulations, methods, know-how, samples, test, technology, standard operating procedure and other data, and other information relating to the preclinical, clinical and pharmaceutical development, analysis, regulatory files and correspondence, manufacturing and packaging in whatever form (written, oral, visual, electronic); (i) All sales and marketing plans, future plans, business plans, financial information, results of consultancies, contracts, customer lists and relationships, and other information which may be needed to be disclosed by each Party to the other in relation to business negotiations in whatever form (written, oral, visual, electronic); and (ii) Any kind of information identified by one of the parties as Confidential Information
Confidential Information does not include information which: (i) the recipient can demonstrate in writing to be rightfully known to recipient prior to its receipt of the information; (ii) has become publicly known through no wrongful act of the recipient; (iii) the recipient can demonstrate in writing to have been rightfully received by recipient from a third party authorized to make such communication without restriction; or (iv) has been approved for release by written authorization of the discloser. A recipient may disclose Confidential Information to a third party if required by court or government action to be disclosed; provided, however, the recipient must first provide the discloser with reasonable prior, written notice of such disclosure so that the discloser may attempt to prevent such disclosure, and that the Confidential Information shall continue to be treated as Confidential Information for all other purposes.
Each Party undertakes to hold any and all Confidential Information in confidence and to use it exclusively for the purposes set forth in this Agreement. Neither Party shall, directly or indirectly, make use of the Confidential Information of the other Party without the other Party’s prior, written consent.
TCI and Client agree, except as otherwise set forth in this Agreement and unless otherwise required by law or compelled by a court of competent jurisdiction, not to disclose to a third party, without the prior written consent of the other Party, the Confidential Information, including the terms and/or conditions of this Agreement, including, without limitation, not disclosing or sharing a copy of this Agreement with any third party. TCI agrees to protect the confidentiality of Client’s Confidential Information provided to TCI per terms of TCI’s standard Confidentiality Policy.
8. HIRING OF TCI’S EMPLOYEES
In the absence of TCI’s prior written consent, and during the Term (and all renewals) of this Agreement and for a period of twelve (12) months following the expiration or termination of this Agreement, for any reason whatsoever, Client (and its partners, agents, affiliates, servants, employees, officers, directors, owners, and any and all persons directly or indirectly acting for or with Client) agrees not to hire or engage, directly or indirectly, any person who, at any time during the twelve (12) months immediately preceding such hiring or engagement, was an employee (including but not limited to part-time, full-time, hourly or as an independent contractor) of TCI employed to perform the Services or other services similar to the Services for any customer of TCI. TCI and Client agree that the damages from a breach of this Section would be difficult to ascertain. Therefore, in the event Client breaches this provision, Client agrees to pay TCI, as liquidated damages and not as a penalty, a sum equal to twenty-four (24) months pay (salary, bonus and commissions) for each former employee of TCI hired by Client, at the rate paid by TCI for the last full month of such employee’s employment with TCI. In addition, TCI shall be entitled to temporary and permanent injunctions in order to prevent or restrain any such violation of this Section by the Client or its partners, agents, representatives, servants, employers, employees and any and all persons directly or indirectly acting for or with the Client. These remedies shall be in addition to, and not in limitation of, any other rights or remedies afforded to TCI under this Agreement or available to TCI at law or in equity.
9. FORCE MAJEURE
Except for payment obligations, the parties shall not be responsible for failure to render any obligation due to causes beyond its reasonable control, including, but not limited to, work stoppages, fires, civil disobedience, riots, rebellions, floods, war, acts of terrorism, quarantines mandated by law, delays in transportation, accident, failure of Client to provide a suitable operating environment for TCI, hardware malfunctions caused by defects in software or otherwise, failure of Client to allow TCI access to its computer system, acts of God and other similar occurrences. The obligations and rights of the parties shall be extended on a day-to-day basis for the duration of excusable delay.
10. REPRESENTATIONS AND WARRANTIES.
Each Party represents and warrants to the other Party that (i) the person signing the Quote has the full right, power and authority to sign the Quote on behalf of Client; (ii) that Client has the full, right, power and authority to enter into and to perform this Agreement; (ii) the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action; (iii) this Agreement constitutes a valid and binding obligation of such Party, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the rights of creditors generally; and (iv) the execution, delivery and performance of this Agreement does not or will not violate or cause a breach or default under (a) the governing corporate or company documents of such party; (b) any agreement, lease, mortgage, license or other contract to which such Party is a party; or (c) any law, rule, regulation, order, decree or consent action by which such Party is bound or to which it is subject.
DISCLAIMER OF WARRANTIES. TCI DOES NOT WARRANT THE UNINTERRUPTED OR ERROR-FREE OPERATION OR PROVISION OF THE SERVICES, THAT THE SERVICES WILL BE FREE FROM INTERRUPTION, THAT THE SERVICES WILL BE SECURE FROM UNAUTHORIZED ACCESS, THAT THE SERVICES WILL DETECT EVERY SECURITY OR OTHER VULNERABILITY OF CLIENT’S COMPUTER SYSTEMS, OR THAT RESULTS GENERATED BY THE SERVICES WILL BE ERROR-FREE, ACCURATE OR COMPLETE. ALL INFORMATION, MATERIALS AND SERVICES ARE PROVIDED TO CLIENT “AS IS”. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, TCI HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.
The Services may become unavailable due to any number of factors, including, without limitation, scheduled or unscheduled maintenance, technical failure of the software, telecommunications infrastructure, or the unavailability or interruption of access to the Internet. The disclaimers set forth in this Section shall apply regardless of whether (i) TCI determines that Client’s computer systems are deemed “secure”, (ii) Client performs such modifications to its computer systems as TCI reasonably suggests in order for Client’s computer systems to be deemed “secure”, or (iii) otherwise.
11. LIMITATION OF LIABILITY
TCI WILL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY OF THE FOLLOWING ARISING OUT OF THIS AGREEMENT AND/OR THE SERVICES: ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TCI IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFITS, LOSS OF DATA, EQUIPMENT DOWNTIME, OR LOSS OF GOODWILL. CLIENT ACKNOWLEDGES AND AGREES THAT TCI’S AGGREGATE LIABILITY TO CLIENT FOR ANY DAMAGES, LOSSES, FEES, CHARGES, EXPENSES AND/OR LIABILITIES ARISING OUT OF WITH THIS AGREEMENT AND/OR THE SERVICES SHALL NOT EXCEED THE FEES PAID BY CLIENT PURSUANT TO THIS AGREEMENT FOR THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST OCCURRENCE REPORTED TO TCI BY CLIENT OF THE APPLICABLE DAMAGES, LOSSES, FEES, CHARGES, EXPENSES AND/OR LIABILITIES. Client acknowledges that the limitations on liability were specifically bargained for and are acceptable to Client. Client’s willingness to agree to the limitations of liability set forth in this Section was material to TCI’s decision to enter into this Agreement. The limitations on liability set forth in this Section shall be enforceable to the maximum extent permitted by applicable law.
12. GENERAL TERMS
This Agreement is the entire agreement between TCI and Client and supersedes any prior understandings or written or oral agreements between TCI and Client with respect to the subject matter of this Agreement. This Agreement may only be amended or changed pursuant to a written document duly executed by both TCI and Client. No waiver of a breach of any provision of this Agreement by any Party shall be construed as a waiver of a subsequent breach of the same or any other provision of this Agreement. Client’s obligation to pay for any Services or other services received by TCI shall survive the expiration or earlier termination of this Agreement. The invalidity of any provision of this Agreement shall not affect the enforceability of the remaining Agreement or any other provision of the Agreement. All exhibits and schedules to this Agreement are true, correct and hereby incorporated into by reference and made a part of this Agreement. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by TCI and Client and their successors, heirs and permitted assigns, and no other person or entity shall have or acquire any right by virtue of this Agreement unless otherwise specifically agreed to in writing by TCI and Client. This Agreement and the rights and obligations of the Parties are not assignable without the prior written consent of the other Party. Any attempt by one of the Parties to assign any this Agreement or any right, duty, or obligation which arises under this Agreement, without such consent, will be void. This Agreement shall not be construed to give any person other than TCI and the Client any legal or equitable right, remedy or claim under or with respect to this Agreement. This Agreement will not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party will act as an independent entity and not as an agent of the other Party for any purpose, and neither will have the authority to bind the other. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and of equal force and effect, and all of which taken together shall constitute one and the same instrument.
The Parties reserve the right to maintain an executed copy of this Agreement in electronic form only, and agree that a print-out of such electronic form of this Agreement will be deemed an original for all purposes relating to the enforceability of the terms and conditions of this Agreement.
All notices required pursuant to this Agreement shall be written and shall be delivered by (i) hand-delivery; (ii) nationally recognized overnight delivery service (such as FedEx, UPS, DHL, or USPS Express Mail); or (iii) electronic mail with verification of receipt. All such notices and other communications shall be addressed to the other Party at the address set forth in the Quote or to such other address as a Party may designate by notice complying with the terms of this Section. Each such notice shall be deemed delivered (i) on the date delivered if by hand-delivery; (ii) on the date delivered or the date delivery is refused by the recipient, if by nationally recognized overnight delivery service; or (iii) upon verification of receipt if by electronic mail.
14. DISPUTE RESOLUTION
Except as otherwise specifically set forth in this Agreement (including but not limited to injunctive relief sought by TCI), the parties hereby agree to resolve any and all controversies, claims and/or disputes arising out of this Agreement and/or any Services (each, a “Dispute”) solely pursuant to the terms of this Section.
A. MANAGEMENT RESOLUTION.
All Disputes shall first be referred to the parties’ authorized representatives for discussion and resolution of the Dispute (“Management Resolution”), which representatives should be but are not required to be the individuals who have executed this Agreement on behalf of their Party.
If Management Resolution fails to resolve the Dispute, then the Dispute shall be resolved by final, binding arbitration (“Arbitration”) in Virginia Beach, Virginia administered by the American Arbitration Association (“AAA”) under the AAA’s Commercial Arbitration Rules. The Parties shall promptly comply with the AAA rules and procedures. A Party may submit the Arbitration ruling to a court of competent jurisdiction to enforce the terms of the ruling.
C. GOVERNING LAW; VENUE; JURISDICTION.
This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Virginia(without giving effect to principles of conflicts of laws). For any action to compel Arbitration, enforce an Arbitration award or seek injunctive relief pursuant to this Agreement, the parties hereby expressly consent to the (i) venue of Virginia Beach, Virginia,, and each Party hereby expressly waives any objection to such venue based upon forum non-conveniens or otherwise; and (ii) jurisdiction of the state court in Virginia Beach , Virginia and/or federal courts in and/or for Norfolk, Virginia.
D. PREVAILING PARTY ATTORNEY’S FEES.
In the event of any Arbitration, action to compel Arbitration, action to enforce an Arbitration award or action to seek injunctive relief pursuant to this Agreement, the prevailing Party in such proceeding shall be entitled to an award of their reasonable attorneys’ fees and costs for each such proceeding, including the Arbitration, trial and for all levels of appeal.
E. INJUNCTIVE RELIEF; CUMULATIVE REMEDIES.
Each Party agrees that a violation or breach of any of the ownership, non-disclosure or confidentiality provisions of this Agreement could cause irreparable harm to the non-breaching Party for which monetary damages may be difficult to ascertain or an inadequate remedy. Therefore, each Party will have the right, in addition to its other rights and remedies, to seek and obtain injunctive relief for any violation of the Hiring of TCI’s Employees, ownership, non-disclosure or confidentiality provisions of this Agreement, and each Party hereby expressly waives any objection, in any such equitable action, that the other Party may have an adequate remedy at law. The rights and remedies set forth in this Agreement are cumulative and concurrent and may be pursued separately, successively or together.
15. CYBERSECURITY RELEASE OF LIABILITY STATEMENT
TCI is a Managed Service Provider (MSP) that specializes in providing comprehensive IT solutions and services to its valued clients. As part of TCI’s commitment to transparency and providing clear understanding between both Parties, TCI requires Client to carefully read and acknowledge this release of liability statement.
A. SCOPE OF SERVICES.
TCI provides various IT services, including but not limited to network management, data storage, software solutions, cybersecurity measures, and infrastructure maintenance. While TCI employs industry-standard practices and takes utmost care to protect its clients’ digital assets, it is essential to acknowledge that no system or security measures can guarantee absolute protection against cyberattacks, data loss, or data breaches.
B. ASSUMPTIONS OF RESPONSIBILITY
By engaging the services of TCI, Client acknowledges that the ultimate responsibility for the security and protection of Client’s data and systems lies with Client. Client understands that cyber threats and data breaches are inherent risks associated with technology usage and TCI cannot be held liable for any direct or indirect damages arising from such events.
C. LIMITATIONS OF LIABILITY
To the maximum extent permitted by law, Client hereby releases and discharges TCI, its directors, officers, employees, and affiliates from any liability, claims, demands, costs, or expenses, including but not limited to legal fees arising from cyberattacks, data loss, or data breaches. This release of liability applies to any losses, damages, or disruptions incurred to your business, reputation, or any third-party claims resulting from such incidents.
D. RISK MITIGATION AND BEST PRACTICES
TCI will diligently work to provide robust security measures, regular system updates, and backups, when subscribed, to minimize the risk of cyberattacks, data loss, and data breaches. TCI strongly advises Client to implement additional security measures such as employee training, encryption protocols, email security and anti-phishing technology, next generation firewalls, and regular system audits to further mitigate risks.
E. NOTIFICATION AND COOPERATION
In the event of a cyberattack, data loss, or data breach, TCI will work closely with Client to investigate the incident, assess the impact, and implement appropriate remedial actions. Client agrees to cooperate fully with TCI during such investigations and to take the necessary steps to prevent further damages or breaches.
Client agrees to defend, and hold TCI harmless from and against any claims, losses, liabilities, damages, costs, or expenses arising from Client’s failure to comply with security best practices, Client’s breach of this agreement, or any intentional or negligent acts or omissions by Client’s employees, officers, directors, owners or authorized personnel.
By engaging the services of TCI, you acknowledge that you have read, understood, and agreed to this release of liability statement. This statement constitutes the entire agreement between the TCI and the Client regarding cyberattacks, data loss, and data breaches and supersedes any previous agreements or understandings, whether oral or written.