This Master Services Agreement (this “Agreement”) sets forth the terms and conditions under which Solutions Granted, Inc., a Virginia corporation (“Solutions Granted,” “we,” “us” or “our”) will provide and/or facilitate certain professional information technology (IT) services to you (“Customer,” “you,” or “your”).

 

Please read this document carefully. By accepting a quote, proposal, service order, or similar document (“Quote”) from Solutions Granted, you accept the terms of this Agreement.  If you do not agree with or accept this Agreement, then you must not accept a Quote or request or receive any IT-related service(s) from us.

 

This Agreement contains binding arbitration and class action waiver terms. You and we agree to submit disputes to a neutral arbitrator and not to sue in court in front of a judge or jury, except in certain small claims court situations. Please see the “Dispute Resolution” section below for details.

 

SCOPE

This is a “master” agreement and, as such, specific services are not listed in this Agreement.   The services that we provide and/or facilitate will be described in one or more Quotes (collectively, the “Services”) that we provide to you. Each Quote, once accepted by you, will be governed under the terms of this Agreement.

1. Scope. The scope of our engagement is limited to those services expressly listed in a Quote; all other services, projects, and related matters are out-of-scope and will not be provided or facilitated unless we expressly agree to do so in writing (collectively, “Out of Scope Services”).
2. Version. Each Quote will be governed under the version of this Agreement that is in place as of the date that the Quote is accepted by you.  Please check and make a note of the “last updated” date indicated at the bottom of this Agreement when you accept a Quote.
3. Conflicts. The provisions of a Quote will govern over conflicting or materially different terms contained in this Agreement.

 

SERVICES

Third Party Providers/Services. Except for services that we provide directly (such as software agent installations, hardware installations, certain monitoring activities, etc.), the Services will be comprised of, and delivered by, third party solution providers who are referred to in the industry as “upstream providers.”  In this Agreement, we refer to upstream providers as “Third Party Providers” and the services that are provided by Third Party Providers are referred to as “Third Party Services.” By way of illustration, Third Party Services may include malware detection and response services, firewall and endpoint security-related services, help desk services, backup and disaster recovery solutions, and the provision of software used to monitor the managed portions of your network, among others.

1. Software Agents. Part or all of the Services may require the installation of software agents (“Software Agents”) in the managed information technology environment. Software Agents are comprised of code that provides access to the managed device(s) on which the code is installed, and through which the applicable Services may be delivered, monitored, and managed. Software Agents that are removed, disabled, circumvented, modified, or otherwise disrupted without our consent can cause the Services to falter or fail and, further, may cause you or your customer (as applicable) to incur downtime or security vulnerabilities, as well as additional costs or fees. You agree to refrain from removing, disabling, circumventing, modifying, or otherwise disrupting any Software Agents unless we explicitly direct or authorize you to do so, and you further agree to prohibit your customers from doing so without our consent. Solutions Granted shall be held harmless from and against any costs, expenses, and fees arising from or related to any unauthorized removal, disablement, circumvention, modification, or disruption of any Software Agents.
2. Selection. We will select the Third Party Providers that provide services appropriate for your or, if applicable, your customers’ managed information technology environment(s) (the “Environment”), and we will facilitate the provision of the selected Third Party Services to the Environment. Not all Third Party Services will be expressly identified as being provided by a Third Party Provider, and we reserve the right to change Third Party Providers in our sole discretion if the change does not materially diminish or reduce the functionality of the applicable Services.

• Reseller. We are a reseller, not a provider, of Third Party Services. Our role in Third Party Services is limited to the facilitation, and not the actual provision, of those services to you or your designated customer. You understand and agree that we are not and cannot be responsible for any defect, omission, or failure of any Third Party Service, or any failure of any Third Party Provider to properly or timely update or provide its services to you, your customer(s), or to us. We facilitate Third Party Services on an “as is” basis only with no guarantee or warranty that the Third Party Service will operate in an error-free or uninterrupted manner.  If an issue requiring remediation arises with a Third Party Service, then we will endeavor to provide a reasonable workaround (e., a “temporary fix”) for the situation if one is readily available; however, we do not warrant or guarantee that a workaround will be available or that a workaround will achieve any particular result or outcome.

1. EULAs/Customer Agreements. Certain Third Party Services may require end users to accept the terms of one or more end user license agreements (EULAs), customer service agreements, subscription agreements, acceptable use policies, or similar terms and conditions (collectively, “End User Agreements”). If the acceptance of an End User Agreement is required for us to provide or facilitate a Service, then you hereby grant us permission to accept the applicable End User Agreement(s) on your or your customers’ (if applicable) behalf. If an End User Agreement deviates materially from industry-standards (e., contains terms that are different than those generally offered by similarly situated companies to end users on an industry-wide basis), then we will bring that situation to your attention. End User Agreements that we accept on your behalf may be viewed at the link provided to you in the applicable Service Plan description (available online at a link we provide to you); however, you may also request a list of the End User Agreements from Solutions Granted through our normal support channels. Please note: End User Agreements may contain service levels, warranties and/or liability limitations that are different than those contained in this Agreement, and all end users must agree to be bound by the terms of all applicable End User Agreements. If you or we are required to comply with End User Agreements that are subsequently modified or amended, we reserve the right to modify or amend any applicable Quote with you to ensure your and our continued compliance with the terms of the modified End User Agreement.
2. Co-Management. In co-managed situations (e.g., where you have designated other vendors or personnel, or “Co-Managed Providers,” to provide you with services that overlap or conflict with the Services provided or facilitated by us), we will endeavor to implement the Services in an efficient and effective manner; however, (a) we will not be responsible for the acts or omissions of Co-Managed Providers, or the remediation of any problems, errors, or downtime associated with those acts or omissions, and (b) in the event that a Co-Managed Provider’s determination on an issue differs from our position on a Service-related matter, we will yield to the Co-Managed Provider’s determination and bring that situation to your attention. In co-managed situations, you hereby agree to indemnify and hold Solutions Granted harmless from and against any and all issues, errors, downtime, exploitations, and/or vulnerabilities (collectively, “Issues”), as well as any damages, expenses, costs, fees, charges, occurrences, obligations, claims, and causes of action arising from Issues, where the Issues cannot directly and unambiguously be traced back to any wrongdoing by Solutions Granted.

 

IMPLEMENTATION

Service Plan. We will suggest a service plan (“Service Plan”) consisting of one or more Third Party Services as part of a customized, strategic program for your business needs.  As various Third Party Providers’ solutions change and/or newer technologies come to market, we may modify our Service Plan and/or substitute one Third Party Service for a different Third Party Service to accommodate market changes, industry needs, technical requirements, and/or to leverage the benefits of newer technologies. We reserve the right to modify Third Party Services in the manner described in this paragraph without prior notice to you; however, if a modification will result in a material reduction of the features or functions of, or accessibility to, an applicable Third Party Service then we will advise you of the modification in advance of its implementation.  Your continued use of the Services after being advised of the modification will constitute your acceptance of the change(s).

 

Advice. We may provide you with advice and directions related to the use or implementation of the Services or we may recommend additional services to you from time to time (“Advice”). You are strongly advised to promptly follow our Advice which, depending on the situation, may require you to make additional infrastructure purchases or investments in additional IT-related products or services. Please note: You agree that we are not responsible for any problems or issues (including but not limited to downtime or security-related issues) that arise from or relate to your failure to promptly or fully follow our Advice. If in our reasonable discretion your failure to follow our Advice makes part or all of the Services economically or technically unreasonable or impracticable to provide, then we may, after providing you with notice and an opportunity to cure, terminate the applicable Services by providing notice of termination to you.  Services required to remediate issues caused by your failure to follow our Advice are out-of-scope and will not be provided unless we agree to do so in writing.

 

Prioritization. All Services will be implemented and/or facilitated (as applicable) on a schedule, and in a prioritized manner, as indicated in the Quote. If no implementation, launch, or “go live date” is indicated in the Quote, then the Services will be implemented on a date to be provided to you, taking into account the applicable Third Party Providers’ schedules and availabilities.

 

Authorized Contact(s). We will be entitled to rely on any directions or consent provided by your personnel or representatives who you designate to provide such directions or consent (“Authorized Contacts”). If no Authorized Contact is identified by you or if a previously identified Authorized Contact is no longer available to us, then your Authorized Contact will be the person (i) who accepted the Quote, and/or (ii) who is generally designated by you during our relationship to provide us with direction or guidance. We will be entitled to rely upon directions and guidance from your Authorized Contact until we are affirmatively made aware of, and acknowledge, a change of status of the Authorized Contact. Changes affecting your Authorized Contact(s) must be submitted to us through our support ticketing system. We reserve the right but not the obligation to delay the implementation, facilitation, and/or provision of Services until we can confirm the Authorized Contact’s authority within your organization.

 

Access. You hereby grant to us and our designated Third Party Providers the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the applicable portions of your (or your customers’) managed information technology environment(s) solely as necessary to enable us or those providers to facilitate and/or provide the Services. It is your responsibility to secure, at your own cost and prior to the commencement of any Services, any necessary rights of entry, licenses (including software licenses), permits or other permissions necessary for Solutions Granted or its applicable Third Party Providers to provide the Services. Proper and safe environmental conditions must be always provided and assured by you. Solutions Granted shall not be required to engage in any activity or provide any Services under conditions that pose or may pose a safety or health concern to any personnel, or that would require extraordinary or non-industry standard efforts to achieve.

 

Minimum Requirements.  Everything in the Environment must be genuine and licensed, including all hardware, software, etc.  If we ask for proof of authenticity and/or licensing, you must provide us with such proof.  If we require certain minimum hardware or software requirements (“Minimum Requirements”), you agree to implement and maintain those Minimum Requirements as an ongoing requirement of us providing or facilitating the Services to you.

 

Support; Response. Support services and response times will be as indicated in the Quote. In no event will we be responsible for delays in our response or our provision of Services during (i) those periods of time covered under the Transition Exception (defined below), or (ii) periods of delay caused by Scheduled Down Time, Customer-Side Downtime, Vendor-Side Downtime (all defined below), or (iii) periods in which we are required to suspend the Services to protect the security or integrity of the Environment or our equipment or network, or (iv) delays caused by a force majeure event.

1. Scheduled Downtime. Scheduled Downtime means those hours during which pre-scheduled maintenance or technical adjustments may be implemented by our Third Party Providers or by us. We will use our best efforts to provide you with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.
2. Customer-Side Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by your actions or omissions. Customer-Side Downtime includes, but is not limited to, any period during which we require your participation, or we require information, directions, or authorization from you but cannot reach your Authorized Contact(s).
3. Vendor-Side Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by third party service providers, third party licensors, or “upstream” service or product vendors.
4. Transition Exception. You acknowledge and agree that for the first forty-five (45) days following the commencement date of any Service as well as any period during off-boarding-related services are undertaken (g., assisting you in the transition of the Services to another provider, terminating a service or substituting one service for another, etc.), the response time commitments and service levels provided to you will not apply, it being understood that there may be unanticipated downtime or delays related to those activities.

 

FEES; PAYMENT

Fees. You agree to pay the fees, costs, and expenses for the Services described in the Quote (“Fees”). Fees are exclusive of any taxes unless otherwise specified on the invoice as tax inclusive. You must pay any applicable value added, goods and services, sales, gross receipts, or other transaction taxes, fees, charges or surcharges, or any regulatory cost recovery surcharges or similar amounts that are owed under this Agreement and which we are permitted to collect from you under applicable law, if any. You will be responsible for any applicable taxes and for all other taxes that you are legally obligated to pay, if any, including any taxes that arise on the distribution or provision of services to your customers or affiliates. We will be responsible for all taxes based on our net income, gross receipts taxes imposed in lieu of taxes on income or profits. If you qualify for a tax exemption, you must provide us with a valid certificate of exemption or other appropriate proof of exemption.

1. Schedule.  All Fees are due and payable on the terms indicated in the Quote and subsequent invoices.
2. Changes to the Managed Environment.  If the managed environment changes or if the number of authorized users accessing the managed environment changes, then you agree that the fees will be automatically and immediately modified to accommodate those changes. Such changes, if applicable, may be applied retroactively to the earliest date on which the changes occurred.
3. Automated Payment.

• ACH. When enrolled in an ACH payment processing method, you authorize us to electronically debit your designated checking or savings account, as defined and configured by you in our payment portal, for any payments due under the Quote.  This authorization will continue until otherwise terminated through our payment portal by one of your Authorized Contacts.  We will apply a $35.00 service charge to your account or the highest amount permitted by law, whichever is less, for any electronic debit that is returned unpaid due to insufficient funds or due to your bank’s electronic draft restrictions.
• Credit Card. When enrolled in a credit card payment processing method, you authorize us to charge your credit card, as designated by you in our payment portal, for any payments due under the Quote. We reserve the right to charge a convenience fee to any amounts paid by credit card equal to the costs of accepting your card.

 

Nonpayment. Undisputed fees that remain unpaid for more than fifteen (15) days when due will be subject to a monthly service fee on the unpaid amount(s) until and including the date payment is received, equaling 1% of the unpaid portion of the applicable Fees. We reserve the right, but not the obligation, to suspend part or all of the Services without prior notice to you in the event that any portion of undisputed Fees are not timely paid. Monthly or recurring charges (if applicable) will continue to accrue during any period of suspension.  Notice of disputes related to Fees must be received by us within sixty (60) days after you are invoiced for the applicable Service, otherwise you waive your right to dispute the fee thereafter. We reserve the right to charge a reasonable reconnect fee (of no more than 10% of your monthly recurring fees) if we suspend the Services due to your nonpayment.

 

Increases. We may increase our Service-related fees from time to time (“Service Fees”) as follows:

1. Solutions Granted’s Fees. We reserve the right to increase the Service Fees by up to five percent (5%) once each calendar year without prior notice to you, and such increases will be reflected in the invoice following the date on which the increase takes effect. In addition, we reserve the right to increase the Service Fees by any additional amounts or percentages, provided, however, that if an increase is more than five percent (5%) of the fees charged for the same Services in the prior calendar year, then you will be provided with a sixty (60) day opportunity to terminate the Services without cause by providing us with written notice of termination (“Notice Period”). If you timely terminate the Services during the Notice Period, then you will be responsible for the payment of all fees accrued up to the termination date as well as all pre-approved, non-mitigatable expenses (e.g., Access Licenses, hardware purchases, etc.) that we incurred in providing or facilitating the Services through the date of termination.  Your continued acceptance or use of the Services after the expiration of the Notice Period will indicate your acceptance of the increased fees.
2. Pass-Through Increases. In addition to the foregoing, we reserve the right to pass through to you any increases in the costs and/or fees charged by Third Party Providers for applicable Third Party Services (“Pass-Through Increases”). Since we do not control Third Party Providers, we cannot predict whether Pass-Through Increases will occur, however, we will endeavor to provide you with as much advance notice of Pass-Through Increases as reasonably possible. Pass-Through Increases are independent of any increases to Service Fees and, as such, will not be included in any calculation to determine whether a Service Fee increase triggers your right to terminate the Services as described above.
3. Expenses. In addition to any other increases, any costs or expenses that we incur while providing or facilitating the Services during a national, state, or local emergency or during a period in which there are fuel, manpower, or other national or local shortages (“State of Emergency”) will be invoiced and payable by you. By way of example, such expenses may include incremental increases in the cost of gasoline or electrical power, or the purchase of health or safety equipment reasonably necessary to provide the Services to you.  State of Emergency-related increases will not be included in any calculation to determine whether a Service Fee increase triggers your right to terminate the Services as described above.

 

LIMITED WARRANTIES; LIMITATIONS OF LIABILITY

Hardware / Software Purchases. All equipment, machines, hardware, software, peripherals, or accessories purchased through Solutions Granted (“Third Party Products”) are generally nonrefundable once the item is obtained from Solutions Granted’s third party seller. If you desire to return a Third Party Product, then the third party seller’s return policies will apply. We do not guarantee that Third Party Products will be returnable, exchangeable, or that re-stocking fees can or will be avoided, and you agree to be responsible for paying all re-stocking or return-related fees charged by the third party seller. We will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third Party Products to you, but will have no liability whatsoever for the quality, functionality, or operability of any Third Party Products, and we will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Third Party Products. All Third Party Products are pro­vided “as is” and without any warranty whatsoever as between Solutions Granted and you (including but not limited to implied warranties).

 

Liability Limitations.  This paragraph limits the liabilities arising from the Services and is a bargained-for and material part of our business relationship with you. You acknowledge and agree that Solutions Granted would not provide any Services, or enter into any Quote or this Agreement unless Solutions Granted could rely on the limitations described in this paragraph. In no event will either party be liable for any indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits (except for fees due and owing to Solutions Granted), savings, or other indirect or contingent event-based economic loss arising out of or in connection with the Services, this Agreement, any Quote, or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement or any Quote, even if a party has been advised of the possibility of such damages; however, reasonable attorneys’ fees awarded to a prevailing party (as described below), fees due and payable to Solutions Granted, your indemnification obligations, and any amounts due and payable pursuant to the “No Poaching” provision of this Agreement shall not be limited by the foregoing limitation. Except for the foregoing exceptions, a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the amount of fees paid by you (excluding hard costs for licenses, hardware, etc.) to Solutions Granted for the specific Service upon which the applicable claim(s) is/are based during the six (6) month period immediately prior to the date on which the cause of action accrued or $25,000, whichever is greater. The foregoing limitations shall apply even if the remedies listed in this Agreement fail of their essential purpose; however, the limitations shall not apply to the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct, or gross negligence. Similarly, a Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved Party’s willful or intentional misconduct or gross negligence. Under no circumstances shall Solutions Granted have any liability for any claims or causes of action arising from or related to any Out of Scope Services.

 

Waiver of Liability for Admin/Root Access.  We strongly suggest that you refrain from providing administrative (or “root)” access to your managed IT environment (“Environment”) to any party other than Solutions Granted or its designated Third Party Providers (if applicable), as such access by any other person or party could make the Environment susceptible to serious security and operational issues caused by, among other things, human error, hardware/software incompatibility, malware/virus attacks, and related occurrences.  If you request or require us to provide any non-Solutions Granted personnel (i.e., non-Solutions Granted employees, such as in a co-managed situation) with administrative or “root” access to any portion of the Environment, then you hereby agree to indemnify and hold us harmless from and against any and all issues, downtime, exploitations, and/or vulnerabilities, as well as any damages, expenses, costs, fees, charges, occurrences, obligations, claims, and causes of action arising from or related to any activities that occur, may occur, or were likely to have occurred in or through the Environment at an administrative or root level, as well as any issues, downtime, exploitations, or vulnerabilities that can reasonably be traced back or connected to activities occurring at the administrative or root level (“Activities”) in the Environment provided, of course, that such Activities were not performed or authorized in writing by Solutions Granted. Solutions Granted’s business records (or its designated Third Party Provider, as applicable) shall be final and determinative proof of whether any Activities were performed or authorized in writing by Solutions Granted.

 

INDEMNIFICATION

Each party (an “Indemnifying Party”) agrees to indemnify, defend, and hold the other party (an “Indemnified Party”) harmless from and against any and all losses, damages, costs, expenses or liabilities, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to, the Indemnifying Party’s uncured or uncurable (if applicable) breach of this Agreement. The Indemnified Party will have the right, but not the obligation, to control the intake, defense and disposition of any claim or cause of action for which indemnity may be sought under this section using counsel that is reasonably acceptable to the Indemnifying Party, which approval shall not be unreasonably withheld or delayed. The Indemnifying Party shall be permitted to have counsel of its choosing participate in the defense of the applicable claim(s); however, (i) such counsel shall be retained at the Indemnifying Party’s sole cost, and (ii) the Indemnified Party’s counsel shall be the ultimate determiner of the strategy and defense of the claim(s) for which indemnity is provided. No claim for which indemnity is sought by an Indemnified Party will be settled without the Indemnifying Party’s prior written consent, which shall not be unreasonably delayed or withheld.

 

TERM; TERMINATION

There are several dates of which you should be aware, including the effective/termination dates of this Agreement and the effective/termination dates of the Services under a Quote.  Each Quote will have its own term and will be terminated only as provided in this Agreement or as provided in the Quote.

1. This Agreement. This Agreement is effective as of the date on which we provide or facilitate a Service to you or on the date on which you accept a Quote, whichever is earlier (“Effective Date”).  This Agreement will terminate automatically (i) if you or we terminate this Agreement For Cause (as described below), or (ii) six (6) months after the last date on which we provide any Service to you or facilitate any Service for you. Upon the termination of this Agreement, all Services will immediately and permanently cease; however, the termination of this Agreement shall not change or eliminate any fees that accrued and/or were payable to us prior to the date of termination, all of which shall be paid by you.  Please note, this Agreement shall not be terminated by either party without cause if Services are in progress under a Quote.
2. Quotes. The term of the Services will be as indicated in the applicable Quote. The termination of Services under one Quote shall not, by itself, cause the termination of (or otherwise impact) this Agreement or the status or progress of any other Services under any other Quote between the parties.
3. Termination Without Cause. Unless otherwise indicated in the Quote, the Services under a Quote may be terminated by either party by providing the other party with thirty (30) days prior written notice of termination (email is sufficient for this purpose).
4. Termination For Cause. In the event that one party (a “Defaulting Party”) commits a material breach under a Quote or under this Agreement, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately the Services under the relevant Quote (a “For Cause” termination) provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within twenty (20) days (ten (10) days for non-payment by Customer) following receipt of written notice of breach from the non-Defaulting Party.

• Service Tickets. Given the vast number of interactions between hardware, software, wireless, and cloud-based solutions, a managed network may occasionally experience disruptions and/or downtime due to, among other things, hardware/software conflicts, communication-related issues, obsolete equipment, and/or user error (“Conflicts”). We cannot and do not guarantee that such Conflicts will not occur, and you understand and agree that the number of service tickets submitted by you is not, by itself, indicative of default by Solutions Granted.

1. Customer Activity as a Basis for Termination. If you or any of your staff, personnel, contractors, or representatives engage in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide or facilitate the Services to you, then in addition to Solutions Granted’s other rights under this Agreement, Solutions Granted will have the right upon providing you with ten (10) days prior written notice, to terminate this Agreement or the applicable Quote For Cause.

1. Consent. You and we may mutually consent, in writing, to terminate a Quote or this Agreement at any time.

1. Transition; Deletion of Data. If you request our assistance to transition away from our services, we will provide such assistance if (i) all fees due and owing to us are paid to us in full prior to Solutions Granted providing its assistance to you, and (ii) you agree to pay our then-current hourly rate for such assistance, with up-front amounts to be paid to us as we may require. For the purposes of clarity, it is understood and agreed that the retrieval and provision of passwords, log files, administrative server information, or conversion of data are transition services, and are subject to the preceding requirements. You also understand and agree that any software configurations that we custom create or program for you are our proprietary information and shall not be disclosed to you under any circumstances. Unless otherwise expressly stated in a Quote or prohibited by applicable law, we will have no obligation to store or maintain any Customer data in our possession or control following the termination of this Agreement or the applicable Services.

 

CONFIDENTIALITY

1. Defined. Confidential Information means all non-public information provided by one party (“Discloser”) to the other party (“Recipient”), including but not limited to customer-related data, customer lists, internal documents, internal communications, proprietary reports and methodologies, and related information. You understand and agree that Solutions Granted’s Service Plans, including the scope, pricing, and availability of each Service Plan, are Confidential Information. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of the Recipient, (ii) was developed independently by the Recipient, or (iii) is or was lawfully and independently provided to the Recipient prior to disclosure by the Discloser, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.

1. Use. During the term of this Agreement and for a period of five (5) years thereafter, the Recipient will keep the Confidential Information it receives fully confidential and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by the Discloser in writing, or (ii) as needed to fulfill its obligations under this Agreement, or (iii) as required by any law, rule, or industry-related regulation.
2. Due Care. The Recipient will exercise the same degree of care with respect to the Confidential Information it receives from the Discloser as it normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.
3. Compelled Disclosure. If a Recipient is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, and provided that it is not prohibited by law from doing so, that Recipient will immediately notify the Discloser in writing of such requirement so that the Discloser may seek a protective order or other appropriate remedy and/or waive the Recipient’s compliance with the provisions of this Section. The Recipient will use its best efforts, as directed by the Discloser and at the Discloser’s expense, to obtain or assist the Discloser in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, the Recipient may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that the Recipient has been advised, by written opinion from its counsel (which shall be shared with the Discloser), that the Recipient is legally compelled to disclose.
4. Additional NDA. Under some circumstances you and we may be required to enter into one or more additional nondisclosure agreements (each an “NDA”) for the protection of a third party’s Confidential Information (such as, for example, a business associate agreement). In that event, the terms of the NDA will be read in conjunction with the terms of the confidentiality provisions of this Agreement, and the terms that protect confidentiality most stringently shall govern the use and destruction of the relevant Confidential Information.

1. Survival. The terms of this Confidentiality section shall survive the termination of this Agreement.

 

OWNERSHIP

Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, copyrights and other intellectual property owned by such party (“Intellectual Property”), and nothing in this Agreement or any Quote conveys or grants any ownership rights or goodwill in one party’s Intellectual Property to the other party. For the purposes of clarity, you understand and agree that we own any software, codes, algorithms, or other works of authorship that we create while providing the Services to you. You understand and agree that out marketing and promotional materials are our proprietary materials and cannot be copied, transmitted, or further disseminated by you without our prior written consent. If we provide licenses to you for third party software, then you understand and agree that such software is licensed, and not sold, to you and your use of that software is subject to the terms and conditions of (i) this Agreement, (ii) the applicable Quote, (iii) written directions supplied to you by us, and (iv) any applicable end user license agreement; no other uses of such third party software are authorized or permitted. To the maximum extent permitted by applicable law, we make no warranty or representation, either expressed or implied, with respect to third party software or its quality, performance, merchantability, or fitness for a particular purpose.

 

DISPUTE RESOLUTION

Except for undisputed collections actions to recover fees due to us (“Collections”) or amounts that qualify under the jurisdiction of small claims court in Prince William County, Virginia, any dispute, claim or controversy arising from or related to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration before one arbitrator who is mutually agreed upon by the parties. The arbitration shall be administered and conducted by the American Arbitration Association (the “AAA”) or if there is no AAA-certified arbitrator available within a twenty (20) mile radius of our office, then by any arbitration forum as determined by us, pursuant to the selected forum’s arbitration rules for commercial disputes (the “Rules”). In the event of any inconsistency between the Rules and the procedures set forth in this paragraph, the procedures set forth in this paragraph will control. The arbitrator will be experienced in contract, intellectual property, and information technology transactions. If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the arbitration venue shall select the arbitrator. The arbitration shall take place in our office unless we agree to a different venue. The arbitrator will determine the scope of discovery in the matter; however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. Initially, the cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs. Nothing herein shall preclude any party from seeking temporary injunctive relief in the event that the party reasonably perceives that without such injunctive relief, serious harm may be done to the party.

 

CLASS ACTION WAIVER. CUSTOMER HEREBY WAIVES, WITH RESPECT TO ANY DISPUTE OR CLAIM ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SERVICES: (I) THE RIGHT TO PARTICIPATE IN A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION, EITHER AS A CLASS REPRESENTATIVE OR CLASS MEMBER; AND (II) THE RIGHT TO JOIN OR CONSOLIDATE CLAIMS WITH CLAIMS OF ANY OTHER PERSON. The foregoing waiver is referred to herein as the “class action waiver”. You and we each agree that no arbitrator shall have any authority to conduct any arbitration in violation of this class action waiver or to issue any relief that applies to any person or entity other than the Solutions Granted or the Customer individually. The parties acknowledge that this class action waiver is material and essential to the arbitration of any claims and is non-severable from this Dispute Resolution section. If this class action waiver is voided, found unenforceable, or limited with respect to any claim for which Customer seeks class-wide relief, then this Dispute Resolution section (except for this sentence) shall be null and void with respect to such claim, subject to the right to appeal the limitation or invalidation of the class action waiver; however, this Dispute Resolution section shall remain valid with respect to all other claims and disputes. The parties acknowledge and agree that under no circumstances will a class action be arbitrated.

 

SECURITY

Virtual Security. You understand and agree that no security solution is one hundred percent effective, and any security paradigm may be circumvented and/or rendered ineffective by certain malware, such as certain ransomware or rootkits that were unknown to the malware prevention industry at the time of infection, and/or which are downloaded or installed into the Environment. We do not warrant or guarantee that all malware, suspicious, or malicious activity will be capable of being detected, avoided, quarantined, or removed, or that any data deleted, corrupted, or encrypted by such malware (“Impacted Data”) will be recoverable. Unless otherwise expressly stated in a Quote, the recovery of Impacted Data is out-of-scope. Moreover, unless expressly stated in a Quote, we will not be responsible for activating multifactor authentication in any application in or connected to the Environment. You are strongly advised to (i) educate your employees to properly identify and react to “phishing” activity (i.e., fraudulent attempts to obtain sensitive information or encourage behavior by disguising oneself as a trustworthy entity or person through email), and (ii) obtain insurance against cyberattacks, data loss, malware-related matters, and privacy-related breaches, as such incidents can occur even under a “best practice” scenario. Unless a malware-related incident is caused by our intentionally malicious behavior or our gross negligence, we and our designated Third Party Providers are held harmless from any costs, expenses, or damages arising from or related to such incidents. To improve security awareness, you agree that we or our designated Third Party Providers may transfer information about the results of processed files, information used for URL reputation determination, security risk tracking, and statistics for protection against spam and malware. Any information obtained in this manner does not and will not contain any personal or confidential information.

 

Breach/Cyber Security Incident Recovery. Unless otherwise expressly stated in the Quote, the scope of the Services does not include the remediation and/or recovery from a Security Incident (defined below).  Such services, if requested by you, must be agreed upon in writing by us before they will be implemented. Given the varied number of possible Security Incidents, we cannot and do not warrant or guarantee (i) the amount of time required to remediate the effects of a Security Incident (or that recovery will be possible under all circumstances), or (ii) that all data or systems impacted by the incident will be recoverable or remediated.  For the purposes of this paragraph, a Security Incident means any attempted or actual unauthorized or impermissible access to or use of the Environment, or any attempted or actual unauthorized or impermissible disclosure of confidential information (such as user names, passwords, etc.), or any other unauthorized activity that compromises or may tend to compromise the security, integrity, or privacy of the information or applications in, or the structure or integrity of, the Environment, or prevents or may tend to prevent normal access to the Environment, or impedes or disrupts the normal functions of the Environment.

 

Physical Security. You agree to implement and maintain reasonable physical security for all managed hardware and related devices in your physical possession or control. Such security measures must include (i) physical barriers, such as door and cabinet locks, designed to prevent unauthorized physical access to protected equipment, (ii) an alarm system to mitigate and/or prevent unauthorized access to the premises at which the protected equipment is located, (iii) fire detection and retardant systems, and (iv) periodic reviews of personnel access rights to ensure that access policies are being enforced, and to help ensure that all access rights are correct and promptly updated.

 

Penetration Testing; Vulnerability Assessment. You understand and agree that security devices, alarms, or other security measures, both physical and virtual, may be tripped or activated during any penetration testing process, despite efforts to avoid such occurrences.  You will be solely responsible for notifying any monitoring company and all law enforcement authorities of the potential for “false alarms” due to the provision of the penetration testing services, and you agree to take all steps necessary to ensure that false alarms are not reported or treated as “real alarms” or credible threats against any person, place or property.  Some alarms and advanced security measures, when activated, may cause the partial or complete shutdown of the Environment, causing substantial downtime and/or delay to your business activities.  Neither we nor our designated Third Party Providers will be responsible for any claims, costs, fees or expenses arising or resulting from (i) any response by any monitoring company or law enforcement authority to penetration testing services, or (ii) the partial or complete shutdown of the Environment by any alarm or security monitoring device.

 

No Third Party Scanning. Unless we authorize such activity in writing, you will not conduct any test, nor request or allow any third party to conduct any test (diagnostic or otherwise), of the security system, protocols, processes, or solutions that we implement in the managed environment (“Testing Activity”).  Any services required to diagnose or remediate errors, issues, or problems arising from unauthorized Testing Activity are not covered under the Quote, and if you request us (and we elect) to perform those services, those services will be billed to you at our then-current hourly rates.

 

MISCELLANEOUS

1. Authority. You hereby represent and warrant that we (or our designated Third Party Provider, if applicable) are authorized to access all devices, peripherals and/or computer processing units, including mobile devices (such as notebook computers, smart phones and tablet computers) that are connected to the Environment (collectively, “Devices”), regardless of whether such Devices are owned, leased or otherwise controlled by you. Unless otherwise stated in writing by us, Devices managed under a Quote will not receive or benefit from the Services while those devices are detached from, or unconnected to, the Environment. Customer is strongly advised to refrain from connecting Devices to the Environment where such devices are not previously known to us and are not expressly covered under a Service Plan (“Unknown Devices”). We will not be responsible for the diagnosis or remediation of any issues in the Environment caused by the connection or use of Unknown Devices in the Environment, and we will not be obligated to provide the Services to any Unknown Devices.
2. Data Deletion. The information on equipment returned to us at the end of the Services or, if applicable, provided to us for in-warranty repair or replacement, will be deleted; however, we cannot and do not guarantee that deleted information will be rendered irrecoverable under all circumstances. For that reason, we strongly recommend that you permanently delete any personal, confidential, and/or highly sensitive information from such equipment before providing or returning that equipment to us.
3. Compliance; No Legal Advice. Unless otherwise expressly stated in a Quote, the Services are not intended, and will not be used, to bring you into full regulatory compliance with any rule, regulation, or requirement that may be applicable to your business or operations. Depending on the Services provided, the Services may aid your efforts to fulfill regulatory compliance; however, unless otherwise explicitly stated in the Quote, the Services are not (and should not be used as) a compliance solution. Neither the results of any Service nor any proposed or suggested remediation, action, response plan, or Service Plan (“Results”) are legal advice and shall not be construed as such. Client is responsible for obtaining its own legal representation related to any of Client’s industry, regulatory, and/or statutory-related requirements (“Applicable Laws”). Client is advised to consult its own legal resources before relying on any advice or recommendations made by Solutions Granted that pertain to or impact Applicable Laws.  Client understands that any Results provided to Client will be based on the status of the applicable rules/laws in place at the time that the Results are delivered, and subsequent changes to the status or content of any applicable laws/rules may render the Results obsolete.
4. Disclosure. You warrant and represent that you know of no law or regulation governing your business that would impede or restrict the provision or facilitation of the Services, or that would require us or our designated Third Party Provider(s) to register with, or report our provision or facilitation of the Services (or the results thereof), to any government or regulatory authority. You agree to promptly notify us if you become subject to any of the foregoing which, in our discretion, may require a modification to the scope or pricing of the Services. Similarly, if you are subject to responsibilities under any applicable privacy law (such as HIPAA), then you agree to identify to us any data or information subject to protection under that law prior to providing such information to us or, as applicable, prior to giving us access to such information.
5. No Fiduciary. The scope of our relationship with you is limited to the specific Services provided to you or facilitated for you, and no other relationship, fiduciary or otherwise, exists or will exist between us. If, by operation of law, a fiduciary relationship is imposed or presumed for out-of-scope services, you hereby waive that relationship and any fiduciary obligations thereunder.

1. Fair Usage Policy. Our Fair Usage Policy (“FUP”) applies to all services that are described or designated as “unlimited” as well as services that are not expressly capped in the number of available usage hours per month.  An “unlimited” service designation means that, subject to the terms of this FUP, you may use the applicable service as reasonably necessary for you to enjoy the use and benefit of the service without incurring additional time-based or usage-based costs.  However, unless expressly stated otherwise in the Quote, all unlimited services are provided during our normal business hours only and are subject to our technicians’ availabilities, which cannot always be guaranteed.  In addition, we reserve the right to assign our technicians as we deem necessary to handle issues that are more urgent, critical, or pressing than the request(s) or issue(s) reported by you.  Consistent with this FUP, you agree to refrain from (i) creating urgent support tickets for non-urgent or non-critical issues, (ii) requesting excessive support services that are inconsistent with normal usage patterns in the industry (e.g., requesting support in lieu of training), or (iii) requesting support or services that are intended to interfere, or may likely interfere, with our ability to provide our services to our other customers.

1. Updates. Patches and updates to hardware and software (“Updates”) are created and distributed by third parties—such as equipment or software manufacturers—and may be supplied to us from time to time for installation into the Environment. If Updates are provided to you as part of the Services, we will implement and follow the manufacturers’ recommendations for the installation of Updates; however, (i) we do not warrant or guarantee that any Update will perform properly, (ii) we will not be responsible for any downtime or losses arising from or related to the installation, use, or inability to use any Update, (iii) we will not be responsible for the remediation of any device or software that is rendered inoperable or non-functional due to the Update, and (iv) we reserve the right, but not the obligations, to refrain from installing an Update until we have determined, in our reasonable discretion, that the Updates will be compatible with the configuration of the Environment and materially beneficial to the features or functionality of the affected software or hardware.
2. No Poaching. Each party (a “Restricted Party”) acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, the Restricted Party will not, individually or in conjunction with others, directly or indirectly, hire or retain the services of any of the other party’s employees with whom the Restricted Party worked (each, a “Restricted Employee”), or induce or influence a Restricted Employee to discontinue his/her employment or agency relationship with the other party. In the event of a violation of the terms of the restrictive covenants in this section that remains uncured after written notice of the violation is provided to the Restricted Party, the parties acknowledge and agree that the damages to the other party would be difficult or impracticable to determine, and in such event, the Restricted Party will pay the other party as liquidated damages and not as a penalty an amount equal to one hundred thousand dollars ($100,000) or the amount that the other party paid to that employee in the one (1) year period immediately preceding the date on which the Restricted Party violated the foregoing restriction, whichever is greater. In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to a party’s employees by the Restricted Party will be deemed to be a material breach of this Agreement, in which event the affected party shall have the right, but not the obligation, to terminate this Agreement or any Services under any then-current Quote immediately For Cause.

1. Collections. If we are required to send your account to Collections or to start any Collections-related action to recover undisputed fees, we will be entitled to obtain legal counsel or retain an outside collection agency within your state of business or state of incorporation for collection of amount(s) you owe to us. You agree to pay any and all attorneys’ fees, court costs, court ordered interest (if applicable), and/or collection fees relevant to our efforts to secure payment from you, which may also include costs for necessary travel by Solutions Granted personnel in order to represent such claims in the your jurisdiction.
2. Assignment. Neither this Agreement nor any Quote may be assigned or transferred by a party without the prior written consent of the other party. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, we may assign our rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of our business or any other transaction in which ownership of more than fifty percent (50%) of our voting securities are transferred; provided, however, that the assignee expressly assumes our obligations hereunder.

1. Amendment. Unless otherwise stated in this Agreement, this Agreement and any Quote may be amended only by a written document (email or similar electronic documents are sufficient for this purpose) that specifically refers to this Agreement or the Quote being amended and is affirmatively and unequivocally accepted by you and by us in writing (email or electronic signature is acceptable).

1. Time Limitations. The parties mutually agree that, unless otherwise prohibited by law, any action for any matter arising out of or related to any Service (except for issues of nonpayment by Customer) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.

1. Severability. If any provision in this Agreement or any Quote is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions will be valid and enforceable to the fullest extent permitted by applicable law.

1. Other Terms. We will not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication supplied by you unless we have expressly acknowledged the other terms and, thereafter, expressly and specifically accepted such other terms in writing.
2. No Waiver. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an agreement to waive such terms with respect to any other occurrences.
3. Merger. This Agreement sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services; however, any payment obligations that you have or may have incurred under any prior superseded agreement with us are not nullified by this Agreement and remain in full force and effect. No representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. We will not be bound by any of our agents’ or employees’ representations, promises or inducements unless they are explicitly set forth in this Agreement or in a Quote. Any marketing materials or promotional information available at our website (including but not limited to Service descriptions, potential results, customer endorsements, etc.) are for illustrative or educational purposes only and are not intended to create, and will not be interpreted as creating, additional duties, requirements, service levels, or promises or guarantees of specific Services or specific results.
4. Force Majeure. Neither party will be liable to the other party for delays or failures to perform its obligations because of circumstances beyond such party’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.

1. Survival. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive. If any provision in this Agreement is deemed unenforceable by operation of law, then that provision shall be excised from this Agreement and the balance of this Agreement shall be enforced in full.
2. Governing Law; Venue. This Agreement will be governed by, and construed according to, the laws of the state of Virginia. You hereby irrevocably consent to the exclusive jurisdiction and venue of Prince William County, Virginia, for all non-arbitrable claims and causes of action with us that arise from or relate to this Agreement.

1. No Third Party Beneficiaries. Customer has entered into this Agreement solely for its own benefit. Customer intends no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.

1. Usage in Trade. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to this Agreement will be used to modify, interpret, or supplement in any manner the terms of this Agreement.
2. Notices; Writing Requirement. Where notice is required to be provided to a party under this Agreement, such notice may be sent by postal mail, overnight courier, or email as follows: notice will be deemed delivered three (3) business days after being deposited in postal mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx, DHL, or other overnight courier, or one (1) day after notice is delivered by email. Notice sent by email will be sufficient only if the message is sent to the last known email address of the recipient or such other email address that is expressly designated by the recipient for the receipt of such notices.  The parties agree that each party’s Authorized Contact is an authorized and designated recipient of notices under this section. All electronic documents and communications between the parties, including email, will satisfy any “writing” requirement under this Agreement.

1. Independent Contractor. Solutions Granted is an independent contractor, and is not Customer’s employer, employee, partner, or affiliate.

1. Contractors. Should Solutions Granted elect to use contractors to provide onsite services to you (such as the installation of equipment or the installation of software on local devices), Solutions Granted will guarantee that work as if it performed that work itself. For the purposes of clarity, Customer understands and agrees that Third Party Services are resold to you and, therefore, are not contracted or subcontracted services hereunder, and Third Party Providers are not our contractors or subcontractors.
2. Data & Service Access. Some of the Services may be provided by persons outside of the United States and/or your data may occasionally be accessed, viewed, or stored on secure servers located outside of the United States. You agree to notify us if your company requires us to modify these standard service provisions, in which case additional (and potentially significant) costs will apply.
3. Obsolescence. If at any time any portion of the Environment becomes outdated, obsolete, reaches the end of its useful life, or acquires “end of support” status from the applicable device’s or software’s manufacturer (“Obsolete Element”), then we may designate the device or software as “unsupported” or “non-standard” and require you to update the Obsolete Element within a reasonable time period.  If you do not replace the Obsolete Element reasonably promptly, then in our discretion we may (i) continue to provide or facilitate the Services to the Obsolete Element using our “best efforts” only with no warranty or requirement of remediation whatsoever regarding the operability or functionality of the Obsolete Element, or (ii) eliminate the Obsolete Element from the scope of the Services by providing written notice to you (email is sufficient for this purpose).  In any event, we make no representation or warranty whatsoever regarding any Obsolete Element or the deployment, service level guarantees, or remediation activities for any Obsolete Element.

1. Critical Vendor Status.  In the event that you declare bankruptcy, or there is an assignment for the benefit of creditors, then you agree that we are a “critical vendor” and you will take all steps necessary to have us designated as a “critical vendor” entitled to payment and all other statuses and priorities afforded to any of your other critical vendors.

1. Marketing. You agree that, during the term of this Agreement, we may use your company name, company location, and company’s logos, trademarks, and service marks in our marketing and promotional materials solely to demonstrate that you are a customer of Solutions Granted.

1. Counterparts. The parties intend to sign, accept and/or deliver any Quote, this Agreement, or any amendment in any number of counterparts, and each of which will be deemed an original and all of which, when taken together, will be deemed to be one agreement. Each party may sign, accept, and/or deliver any Quote, this Agreement, or any amendment electronically (e.g., by digital signature, electronic reproduction of a handwritten signature, or by syntax in an email in which a party affirmatively acknowledges its acceptance) or by reference (as applicable).

 

Last Updated: April 2023