General Terms and Conditions – 2 Year
CompuVision NetAlert Managed Services Terms and Conditions (2 Year)
1. Confidentiality During the term of this Agreement, and thereafter in perpetuity, neither party shall without the prior written consent of the other, disclose to anyone any Confidential Information of the other. “Confidential Information” for the purposes of this Agreement shall include each party’s proprietary and confidential information such as, but not limited to, customer lists, business plans, marketing plans, financial information, designs, drawing, specifications, models, software, source codes, and object codes. Confidential Information shall not include any information that client makes publicly available or information which becomes publicly available through no act of CompuVision or Client or is rightfully received by either party from a third party.
2. Client and CompuVision both agree that they will not solicit for hire and it will not hire or otherwise engage any of each other’s employees or contractors, either directly or indirectly during any period services are provided under this agreement or in the 24-month period immediately following termination of this agreement.
3. Force Majeure: Neither party shall be liable for any failure of or delay in performance of its obligations under this Agreement to the extent such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of God, acts of a public enemy, pandemics, fires, floods, wars, civil disturbances, sabotage, accidents, insurrections, terrorism, blockades, embargoes, storms, explosions, labor disputes (whether or not the employees' demands are reasonable and within the party's power to satisfy), acts of any governmental body, failure or delay of third parties or governmental bodies from whom approvals, authorizations, licenses, franchises or permits must be obtained, or inability to obtain labor, materials, equipment, or transportation or illness of CompuVision’s technical staff (collectively referred to herein as "Force Majeure"). Each party shall use reasonable efforts to minimize the duration and consequences of any failure of or delay in performance resulting from a Force Majeure event.
4. CompuVision shall not be liable to Client or any of its affiliates for any damages, whether incidental, direct, indirect, special, consequential or punitive damages arising out of service or equipment provided hereunder, including but not limited to loss of profits or revenue, loss of use of equipment, lost data, or loss to person or property, costs of substitute equipment or other costs even if CompuVision has been advised of the possibility of such damages. Regardless of the form of action, CompuVision’s cumulative liability shall be only for loss or damage directly attributable to negligence of a CompuVision employee or contractor, for the cost of restoring the network to its condition prior to the negligence, but not to exceed thirty thousand Dollars. If a collection action is initiated by either party or if CompuVision has to defend any action by Client, CompuVision is entitled to its reasonable attorney fees and expenses to be paid by Client.
5. Implied Warranties are expressly disclaimed by CompuVision. A CompuVision contractor is a technician or contractor who operates on behalf of CompuVision, is paid by CompuVision and has access to CompuVision’s service ticket management system for making time entries and charges for their work. CompuVision is not responsible for the acts of other technicians, contractors or consultants providing service to Client not under its control and direction. If Client purchases equipment from CompuVision it understands and agrees that it will look to the manufacturer for all remedies and warranties and agrees that CompuVision is not responsible for functioning of the equipment and has not made any express or implied warranties. CompuVision shall not be liable for any claim or demand against the Client by any third party on account of errors or omissions performed hereunder.
6. Remote access to personal computers and/or networks. If or when Client transitions to home or alternative networks, CompuVision will make best effort to make connections and serviceability. However, home or alternative networks may not have adequate internet connectivity and equipment to effectively work. CompuVision is not responsible for inadequacies in those home or alternative networks or to secure those connections. Home equipment will not be as secure and may not have CompuVision’s software and security features. CompuVision is not responsible for the security of the home or alternative networks. Work on a home or alternative network unless otherwise included is outside the scope of this Agreement and CompuVision may charge it’s then hourly rate for work on home or alternative networks. CompuVision will charge for additional software installed at home or alternative networks as needed.
7. In the event of a Force Majeure CompuVision is not required to have technicians work during periods or at places where their safety or health could be in jeopardy and in any event will not require technicians to go on site.
8. Client agrees to carry liability insurance and property insurance covering any damage to its network as well as to any clients of the Client adversely affected by Client’s network functioning or transmissions from its network.
9. CompuVision may apply changes or additional terms, conditions and provisions to this Agreement upon 30 days advance written notice to client containing the proposed addition or change. If the additions or changes are not objected to then they shall take effect at the end of the 30 days. Within the 30 days Client may submit changes or objections to the proposed changes or additional terms. If the parties do not agree on the change or addition then it shall not become part of the Agreement. All the terms, conditions and provisions of this Agreement will continue to apply during any renewal term. Both parties agree to negotiate in good faith rates to be mutually agreed under any renewed contractual service term to be effective at the end of the initial term.
10. Failure to pay: If payment is not received by the first of the month for that month of service CompuVision reserves the right to put a hold on rendering on-site and remote services until monthly fee has been paid, provided CompuVision gives a five (5) business day notice of late payment.
11. If Client fails to make payment for any services or items purchased, and such failure continues for fifteen days, interest shall accrue on any amount due at the rate of 12% per annum until paid. In the event collection processes are instituted to collect any amounts due from Client, Client shall pay the costs of collection plus reasonable attorney fees.
12. This Agreement is fully assignable by CompuVision. Immediately upon assignment the assignee’s name, address and contact information shall be provided to the other party. This Agreement shall be fully binding and enforceable as against all permitted assignees and successors in interest.
13. Termination:
Termination by Client: Client may terminate this Agreement with or without cause after the first 24 months of the Agreement have passed payment of a Termination Fee equal to the remaining balance of the amount of the monthly Managed Services fee agreed to in this Agreement. Client may terminate Agreement if CompuVision fails to perform or observe any material term or condition of this Agreement and fails to correct within thirty (30) days after receipt of written notice from Client of such failure.
Termination by CompuVision:
a. Upon giving notice to Client of default and the default is not cured within ten (10) business days of receipt of written notice from CompuVision or for failure of Client to pay for service or products at the time of ordering or within 30 days of billing. Failure of CompuVision to require payment at the time provided shall not be construed as a waiver of the right to do so.
b. Any of the following which remains un-dismissed for a period of sixty (60) days: If Client files protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver is commenced by a third party against Client.
c. Failure of Client to comply with its obligations in this Agreement after written notice by CompuVision of the non-compliance and failure to correct the problem or acknowledge the problem and commitment to take corrective action in the future.
d. Backups in the event of default or early termination or in the event the parties do not renew at the end of the term of this Agreement: Client shall be responsible for transferring backups to a system administered by Client or others on its behalf and for paying any costs of transferring and/or setting up backups off of the system maintained by CompuVision. If Client does not provide for any transfer of backups, they shall be terminated within 30 days of the Notice of Termination or Notice of Default. Client assumes all responsibility for its backups and CompuVision has no responsibility to retain backups. In the event prior to the end of the 30 days, client places its own backups on site or obtains its own cloud backups then it shall notify CompuVision so it’s backups can be terminated.
e. In the event of default or termination under any circumstances Client agrees it will provide access to CompuVision technicians to remove antivirus licenses and monitoring tools. The consequence of and failure to provide this access shall be that Client shall continue to be responsible for 50% of the amount of the monthly Managed Services payment until access is allowed and the licenses and tools removed. Spam filtering will be terminated upon default or termination. Client understands that it is entirely responsible to redirect all of Client’s MX records away from the spam filter system and redirect email to its server or it must provide CompuVision access to its network information and equipment to take those steps. Upon termination of spam filtering services email will bounce if Client has not taken these steps or requested and allowed CompuVision to take those measures. Client understands the above and accepts this responsibility and the consequences if it fails to cooperate or act; Client acknowledges that upon termination of the spam filtering if these steps are not allowed or taken email will not be available and there is no recourse whatsoever to CompuVision.
f. In the event of termination by either party, Client is responsible for the full amount of all payments for services provided and products ordered.
g. If either party terminates the relationship of managed service provider and client or if Client defaults then the parties agree to work cooperatively to transfer the client’s data and network information as directed by the client to another service provider or to the client. The Client will pay the cost of transfer which will include hourly charges of technicians to accomplish the transfer and any services maintained by CompuVision containing Client data. Client must designate a vendor to handle its email, backups and any other services provided by CompuVision. Client must establish an account for transfer of the backups and any other services within 30 days of notice of termination or default, or within 30 days of termination of this SLA. CompuVision has no responsibility for backups, email or other services beyond 30 days following termination or default under this Agreement.
h. In the event of termination of services for any reason by either party, upon written request by Client CompuVision will provide up to 60 days support to allow Client to make a transition provided Client pays all amounts then due and pays the fee for the additional 60 days in advance.
14. Dispute Resolution: All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration unless they are of an amount which can be handled within the small claims court of the jurisdiction of the CompuVision. The parties agree they waive the right to bring a lawsuit based on such claims or disputes other than in small claims court. Before commencing any arbitration proceedings the aggrieved party must first present the claim or dispute in writing to the other party. The parties shall have 30 days to resolve the claim or dispute. If not resolved then the aggrieved party may commence arbitration proceedings. The arbitration shall be conducted by Arbitration Resolution Services, Inc. (ARS) or other mutually agreed upon dispute resolution service and the parties shall be bound by any and all rules of the American Arbitration Associations United States Commercial Resolution Dispute Resolution Procedures for Consumer–Related Disputes. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all decisions. Arbitration shall be conducted by an arbitrator experienced in Information Technology services and experience required for arbitrator and shall include a written record of the arbitration hearing. An award of arbitration may be converted to judgment in a Court of competent jurisdiction. The location of arbitration shall be in the home city, county of CompuVision. The fees and expenses of the arbitrator and proceedings shall be paid by the losing party.
15. This Agreement and any amendments and its validity, construction and performance shall be governed by the laws of the State of California, Santa Barbara County. Exclusive jurisdiction and venue for all matters relating to this Agreement shall be in the county and state of the CompuVision, and the parties agree and consent to such jurisdiction and venue.
16. This Agreement does not create any rights in any third parties.
This Agreement for consulting services is between ("Client") and CV Enterprises, Inc. dba CompuVision and Vision Communications ("Consultant").
Client and Consultant agree as follows:
1. SERVICES AND PRODUCTS PROVIDED.
1.1 SERVICES. Consultant agrees to provide Client professional consulting services. Services might involve design, implementation, research, ongoing support, project management, and attendance at meetings. Services are categorized as either Projects, Ongoing Support, or may be handled by a separate Support Contract.
1.2 CONTROL OF SERVICES. Consultant shall determine the time, place, method, details, and means of performing the Services. Client agrees to furnish any facilities, personnel and equipment necessary to facilitate Consultant's providing the Services.
1.3. PRODUCTS. Consultant shall provide products as requested by the Client via a proposal process. The Client will be provided a proposal upon which they will review and approve as desired. Orders will be processed by Consultant upon authorized signature by Client on the proposal and provision of a 50 percent deposit, or for orders less than $500.00, by verbal request.
2. CONSULTANT PERSONNEL
2.1 CONSULTANT STAFF. Consultant will provide adequate staff to render the Services. In the event that any Consultant staff is found to be unacceptable to Client, Client shall notify Consultant of such fact and Consultant shall work with Client to resolve the problem and/or including the replacement of staff as deemed acceptable to Client.
2.2. INDEPENDENT CONTRACTOR. Consultant is an independent contractor. Neither Consultant nor Consultant's employees are, or shall be deemed for any purpose to be, employees of Client. Client shall not be responsible to Consultant, Consultant's employees or any governing body for any payroll-related taxes related to the performance of the Services.
3. PROJECT MANAGEMENT
3.1. CLIENT PROJECT MANAGER. Client shall designate a Client project manager for the Services (the "Client Project Manager") who shall act as a liaison between Client and Consultant. Client understands and agrees to pay for project management services as provided.
3.2. PROGRESS REPORTS AND MEETINGS. Consultant and Client Project Manager shall hold meetings and issue reports as the parties deem necessary to complete the services.
4. RECORDS
4.1. RECORDS. Consultant shall maintain complete and accurate accounting records, in a form in accordance with generally accepted accounting principles, to substantiate Consultant's charges and expenses hereunder and Consultant shall retain such records for a period of one (1) year from the date of final payment under any Schedule.
5. NON-HIRE.
5.1. NON-HIRE OF CONSULTANT EMPLOYEES. In consideration of this Agreement, Client understands and agrees that client will not in any way attempt to contract with any employee, or agent of Consultant for any services of any nature to be rendered to client on behalf of client at client’s direct or indirect request or for client’s benefit in any way independent of this Agreement while such employee or agent is an agent, consultant of, employee of, Consultant. and if employee consultant or agent ceases to be an employee, consultant or agent, not until the expiration of 24 months. A breach hereof is subject to immediate injunction against client and to equitable relief, including an injunction, because such a breach would cause irreparable harm for which there is no adequate remedy at law. Client agrees to compensate Consultant the amount equal to 1 (one) year of the employee’s compensation. Client further agrees that no bond or other security shall be required in obtaining such equitable relief and hereby consent to the issuance of such injunction and to the ordering of specific performance.
6. CONFIDENTIALITY AND PROPRIETARY RIGHTS
6.1. CONFIDENTIALITY. The parties acknowledge that Client and Consultant each own valuable trade secrets, and other confidential information. Such information may include software code, routines, data, know-how, designs, inventions and other tangible and intangible items. All such information owned by the parties is defined as "Confidential Information". This provision does not apply to Confidential Information that is 1) in the public domain through no fault of the receiving party, 2) was independently developed as shown by documentation, 3) is disclosed to others without similar restrictions, or 4) was already known by the receiving party.
6.2. NON-DISCLOSURE. The parties agree that they will not, at any time during or after the term of this Agreement, disclose any Confidential Information to any person, and that upon termination of this Agreement, each party will return any Confidential Information that belongs to the other party.
7. WARRANTIES & DATA LOSS
7.1. CONSULTANT WARRANTIES. Consultant warrants that each of its employees assigned to perform services under this agreement shall have the proper skill, training and background to perform in a competent and professional manner. Client acknowledges that the services include unknown and unforeseen problems and Consultant shall attempt to solve such problems. Client acknowledges that Consultant does not warrant that there will be a satisfactory solution to all problems. CLIENT AGREES THAT CONSULTANT WARRANTS ITS SERVICES "AS IS" AND THAT CONSULTANT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. CLIENT AGREES THAT ITS EXCLUSIVE REMEDIES AND CONSULTANT. ENTIRE LIABILITY WITH RESPECT TO ANY SERVICES AND/OR PRODUCTS FURNISHED BY CONSULTANT. PURSUANT TO THIS AGREEMENT SHALL BE SET FORTH HEREIN. CLIENT FURTHER AGREES THAT IN NO EVENT SHALL CONSULTANT. BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR ANY DAMAGES, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGE EXPENSES, LOST PROFITS, LOST SAVINGS OR OTHER DAMAGES FROM PRODUCTS OR SERVICES PROVIDED, OR THE BREACH OR ANY EXPRESS OR IMPLIED WARRANTY, EVEN IF CONSULTANT. HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
Client acknowledges that the rates charged by Consultant would be substantially higher but for these limitations.
7.2. DATA LOSS. It is the responsibility of the client to have a current back-up copy of all data, and to provide for appropriate off-site data storage. Consultant. is not in any way responsible for any data loss the client may experience as a result of professional services performed by Consultant. Client may elect to have Consultant. recommend or perform data back up before any services are performed, but said service in no way passes the responsibility of said data integrity on to Consultant.
8. PAYMENT
8.1. PROJECTS. Projects are independently designed events that have been provided as a unique solution. Projects are bid separately and do not involve ongoing support. Projects require a 50 percent deposit and the balance is due within 30 days of the completion of each project.
8.2. PAYMENT TERMS. All invoices are due and payable within 30 days after receipt by Clients. Interest at the rate of 1.5% per month or a $25 rebilling fee (whichever is greater) will be charged on invoices not paid in full after 30 days after the invoice date. Any dispute regarding any invoice must be brought to CV Enterprises Inc.’s attention in writing within 10 days of receipt of said invoice. Pricing provided reflects cash and carry only. Additional charges will be incurred for credit card purchases. All payments due under this Agreement shall be made at CompuVision’s place of business in Santa Barbara, California.
8.4. PRODUCT RETURNS. Product returns are solely at the discretion of Consultant. If Consultant agrees to take product back, a restocking fee of 25% will be charged for product returned. This is based on Consultant obtaining return authorization from the distributor and/or manufacturer. No returns will be accepted after 14 days.
8.3. SHIPPING/HANDLING. Shipping and handling charges are not included in proposal and will be applied to invoice.
9. GENERAL
9.1. TERM AND TERMINATION. This Agreement shall commence when last signed by both parties and shall continue for a period of one year. The term of the contract will extend one additional year from the last date of the invoice of requested services or products. In the event of any material breach of this Agreement by either party, the other party may cancel this Agreement. In the event of termination, Client agrees to pay Consultant for all charges incurred by the Consultant up to the effective date of termination. In the event of such termination, all products that have been ordered by the Client will be provided to the Client and payment for said products will be due and payable immediately upon delivery.
9.2. ASSIGNMENT. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party. A sale of substantially all the assets of a party or a merger of a party does not constitute and assignment for purposes of this clause.
9.3. NOTICES. Any notices or communication under this Agreement shall be in writing and shall be by confirmed facsimile, overnight deliver or certified mail return receipt requested to the party receiving such communication at the address specified below:
9.4. GOVERNING LAW: VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of California. This Agreement shall be construed according to, and the rights of the parties shall be governed by, the law to the State of California. Any action to enforce or interpret this Agreement shall be brought in Santa Barbara County, California.
9.5. MODIFICATIONS. No changes or waivers to this Agreement shall be binding unless made in writing and duly signed by authorized agents of both parties.
9.6. COMPLETE AGREEMENT. This Agreement and each Exhibit attached hereto set forth the entire understanding of the parties as to the subject matter therein and may not be modified except in a writing executed by authorized agents of both parties.
9.7. DELAYS; FORCE MAJEURE. Consultant. shall not be liable for any delay in performance directly or indirectly resulting from acts of the Client, its agents, employees or subcontractors, or causes beyond the control of CV Enterprises, Inc. Causes beyond the control of Consultant. include, but are not limited to: acts of God, acts of public enemy; acts of the United States of the District of Columbia, any State of Territory of the United States or any of their political subdivisions; fire; flood; epidemics; quarantine restrictions; strikes; freight embargoes; unusually severe weather conditions; electrical outages; or default of Consultant’s subcontractors or supplies. Consultant bears no responsibility for delays due to product availability or shipping.
9.8. ATTORNEY’S FEES. If either party to this shall bring any action or proceeding against the other to enforce the terms hereof or to declare rights hereunder, the losing party shall pay to the prevailing party a reasonable sum for attorney’s fees and/or collection costs.