IDEOLITY MSA Terms of Service

(Last updated 10 December 2018)

The following Terms of Service apply to all clients and are included in the Managed Service Agreement (MSA). These Terms may be amended from time-to-time.

Definitions:

Infrastructure is the local area network and all devices attached to it. Devices typically includes routers, firewalls, switches, wireless access points, servers, desktop PCs, laptops, printers, scanners, smartphones, sensors and other devices.

The Internet Connection (aka, Internet Service) is a data connection provisioned by a third-party Internet Service Provider that joins the local area network to the global Internet.

NOTE: The process of changing from one Internet Service Provider to another can be complex. Client agrees to seek counsel in advance from IDEOLITY when contemplating an Internet Connection change and to coordinate with IDEOLITY on the schedule for the service cutover.

Core services are the set of essential infrastructure services that affect all users or groups of users, such as servers, databases and database servers, network switches, wireless access points, and more.

End user support is technical support and problem resolution provided to individual users or individual desktop PCs, printers, smartphones and peripheral equipment with which users directly interact under normal circumstances.

Help Desk is user support provided via email, telephone or remote access in the use and operation of the features of the desktop operating system (such as Microsoft Windows), and office productivity software (such as Microsoft Office).

Response is an active attempt by IDEOLITY personnel to resolve a problem condition that affects Client.

An outage is a problem causing a either a power failure, a telephone service failure or an Internet service failure at the Client's business location.

The word down means that a specific device is completely out of service and not available to any user.

MWP or Managed Workplace Portal is IDEOLITY's proprietary I.T. monitoring and management system. This system depends on (a) 'always on' broadband Internet Connection and (b) use of Client's systems to install and operate various types of software agents which report back to the MWP.

 

Key Provisions:

Authorization
Client agrees to allow IDEOLITY to install monitoring software on Client's devices and to remotely or physically access devices in order to perform its duties according to this Agreement. Such duties may include remote access to individual devices with or without the user's awareness, software installation, configuration and other Information Technology support activities. Client understands that IDEOLITY employees may, in the course of performing their duties, view confidential or sensitive information stored on Client's network.

Confidentiality
Non-Disclosure of Confidential Information: Both CLIENT and IDEOLITY understand that during the term of the MSA, either party may develop, modify, and otherwise have access to and become familiar with various trade secrets and confidential proprietary information of the other party, including the other party's data, databases, business processes, clients, and work requirements. Both parties agree that neither they nor their employees, subcontractors and agents shall disclose any of the other party's confidential information or trade secrets directly or indirectly, nor use them in any way, either during the term of the engagement or at any time thereafter, except as required in the course of the Agreement, and to perform services under this Agreement. IDEOLITY agrees that all Client applications, including the source code and object code versions thereof, are confidential, proprietary information of Client and that IDEOLITY will not use or disclose Client Applications or any portion thereof to anyone for any purpose except as authorized by Client. Information that is NOT protected as confidential shall include: (i) all information already present in the public domain, (ii) all information independently developed by either party, (iii) information necessary for Client to cooperate or collaborate with other Client business associates, and (iv) all information received by either party from a third party not under an obligation of confidentiality.

IDEOLITY agrees that services will be performed under this Agreement only by employees and subcontractors of IDEOLITY who have executed a confidentiality agreement.

This provision for confidentiality shall survive the expiration of the term of the Managed Service Agreement, and shall survive should the Agreement be terminated, for a period of twelve (12) months.

Remedy: In the event of a breach of any provision in Section (a) the non-breaching party shall be entitled to terminate the Managed Service Agreement (see "Termination of the Agreement" below.) The parties also agree that upon notice of any such breach, the breaching party will take all actions reasonably requested by the non-breaching party in order to mitigate the damage of such breach and to avoid further breaches. It is acknowledged that a breach may result in harm to the non-breaching party and may be enforced by the injured party by obtaining injunctive or specific relief from a court of competent jurisdiction, and no bond or other security in excess of $1000 shall be required in connection therewith. Such relief shall be cumulative and not exclusive of any other remedies available to the injured party at law or in equity, including but not limited to damages and reasonable attorneys' fees.

Limit of Liability
Client agrees that IDEOLITY, and the technicians authorized by IDEOLITY, works with Client's Information Technology resources on a "best efforts" basis and shall not be held liable for loss of data, loss of productivity, or any other loss, tangible or intangible, as a result of actions taken with the intent to resolve problems or provide support as set forth in this Agreement.

Exceptions for Breakdowns, Unexpected Events, Hardware or Software Failures:

It is recognized by both parties that the services herein described will provide Client with a stable Information Technology environment; however, unexpected events can and will occur, at unpredictable times.

Hardware component breakdowns and failures may occur. Employees of Client and other vendors, though well-intentioned, may cause a variety of problems. Intrusions or software from internal or external sources may cause systems to perform poorly or fail. Upgrades, patches or new software may cause services or processes to perform poorly or fail.

If a performance issue or hardware or software failure should occur that is the result of circumstances beyond IDEOLITY's influence or control, we will address and bill the issue according to the terms and conditions of the governing Agreement.

Termination of the Agreement
The Managed Services Agreement has no ending date but may be terminated-at-will by either party as of the last day of any calendar quarter (March 31, June 30, September 30 or December 31), provided a minimum of 30 days advance written notice has been given to the other party.

Also, if a party fails to perform its duties according to this Agreement, it is in breach of the Agreement. In order to terminate for cause, the terminating party must serve written notice to the other party describing the breach and citing the relevant section of the Agreement. The other party shall have 15 calendar days from receipt of notice to cure the breach; if it is not cured within that period, then the Agreement shall end at a mutually agreed-upon day and time, and both parties shall be released from any further obligation to perform their respective duties under the Agreement.

Disclaimer of Warranties
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, IDEOLITY 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. IDEOLITY does not warrant that use of software or products furnished by IDEOLITY 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 consultant 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 provisions

This Agreement shall be governed and interpreted in accordance with the laws of the State of Kansas.

Any notice, consent, waiver or other communication hereunder shall be sent by certified or registered mail, return receipt requested, postage prepaid, to the address specified below. Notice shall be deemed to have been given three (3) business days after mailing sent by certified mail.

This Agreement, including all exhibits hereto, embodies the entire agreement between the parties and there are no other agreements, representations, warranties, or understandings, oral or written, between them with respect to the subject matter hereof.

The headings of the sections of this Agreement are inserted as a matter of convenience and for reference purposes only and in no way define, limit or describe the scope of this Agreement or the intent of any such heading or subheading.

If any provision contained in this Agreement is held to be invalid, illegal or unenforceable, this shall not affect any other provision hereof and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.

Neither party may subcontract with, or delegate to any other person, any of its obligations under this Agreement, without the express written consent of the other party.

No failure or delay on the part of either party to this Agreement in exercising any right or power hereunder shall operate as a waiver thereof.

This Agreement shall be signed in any number of counterparts and any number of counterparts shall have the same effect as if the signature of each counterpart were upon the same instrument.