IT CONSULTING SERVICES AGREEMENT TERMS
By signing the IT Consulting Services Statement, to which this document is attached, MCS and Client agree as follows:
a) Consulting Services. MCS agrees to provide the consulting services related to information technology support services and monitoring, computer hardware, software, network configuration, operating systems and networks, database development, programming, and other similar work as set forth in the IT Consulting Services Statement (“the Consulting Statement”) to which this IT Consulting Services Agreement Terms (“the Consulting Terms”) is attached. Such work will be done on behalf of Client and will be performed at a location or locations to be determined by MCS.
b) Regular Consulting Hours. Regular Consulting Hours shall consist of any time MCS works for Client between 8:00 AM and 5:00 PM Monday through Friday, excluding national holidays.
c) Extended Consulting Hours. Extended Consulting Hours shall consist of any hours worked by MCS outside of the period defined above as Regular Consulting Hours, including weekends and holidays.
- The Regular and Extended Consulting Hours encompass ad hoc services, such as minor telephone or on-site support, which are limited in duration and quantity such that a Service Order shall not be required.
d) Managed Services. The Managed Services, consisting of the following types of support, shall be provided as described herein and in the Consulting Statement.
i. SERVER SUPPORT – see Consulting Statement
ii. METTLE CARE DESKTOP OR LAPTOP COMPUTER SUPPORT– see Consulting Statement
iii. ADDITIONAL MACHINES. Client may add or remove services for additional servers, desktop PCs, or laptop PCs. MCS agrees to keep an accurate list of machines covered under the Consulting Statement, and to provide it to Client upon request. Changes to the number of machines may impact your fee structure.
iv. SOFTWARE UPDATES. Maintaining the systems described above shall include applying all appropriate software and operating system updates in a reasonable amount of time. MCS shall determine when software updates are appropriate and what constitutes a reasonable amount of time.
v. DISCLAIMERS. Client acknowledges if it requests updates MCS considers inappropriate, or wishes to have updates applied before MCS deems them safe, MCS is not responsible for the consequences of such actions and Client may be charged for Regular Consulting Hours or Extended Consulting Hours, as applicable, for all labor related to the consequences of such actions.
Furthermore, if Client performs or allows anyone other than MCS to perform any maintenance on any of these machines, MCS is not responsible for the consequences of such actions and Client may be charged for Regular Consulting Hours or Extended Consulting Hours, as applicable, for all labor related to the consequences of such actions.
vi. MONITORING SOFTWARE. To provide the services specified in the Consulting Statement, MCS must install remote monitoring and management software on Client’s servers, desktop computers, laptops, and possibly other equipment at Client’s office. Client grants permission to Consultant to install remote monitoring and management software deemed necessary by Consultant.
e) Additional Services. If Client wishes to accept the terms of a quote or change the services set forth in the Consulting Statement, or any Exhibits thereto, the parties may enter into a binding Service Order in a form to be provided by MCS. Within ten (10) business days of MCS’s receipt of a Service Order, MCS shall notify Client in writing or via electronic communication (i) it accepts the Service Order as submitted by Client; (ii) rejects the Service Order; or (iii) it will notify Client of the earliest date following Client’s requested Service Start Date that the Service Order can be accepted and fulfilled by MCS. Client’s obligation for payment of Services and the term of each Service Order shall commence on the Service Start Date listed on that Service Order. The payment fees and terms for any Service Order shall be as stated in Paragraphs 2 and 3 herein, unless otherwise specified in the Service Order.
2. Fees. Unless otherwise specified for specific services in a Service Order or Exhibit to the Consulting Statement, fees shall be as provided in the Consulting Statement.
a) All one-time, non-recurring fees shall be due and owing in full at the Service Start Date of any particular Service Order. All labor not included in the initial payment shall be billed at end of the following billing cycle.
b) All recurring monthly charges shall be billed one month in advance with first and last months being due prior to the commencement of services hereunder. Partial months shall be prorated based on actual number of service days to facilitate monthly billing.
c) All invoices shall be due and owing fifteen (15) days after the date of the invoice (the “Due Date”). Payment of all charges due and owing must be received by the Due Date.
d) Any unpaid sums over 15 days past the Due Date shall bear interest at the rate of 8% per annum. Client further agrees to pay MCS all costs of collection including actual attorneys’ fees incurred in the collection of any unpaid balance.
4. Confidential Information. Confidential Information includes, without limitation, all trade secrets, technology, data, business practices, research, writing, copyrights, programs, systems, customer information, financial information and all other information used by a party or related to a party’s present and intended future organizational purposes. Confidential Information may be in any form, including without limitation written, computer software, video or oral. Confidential Information does not include information which: (i) at the time of disclosure or thereafter is generally available to and known by the public (other than as a result of its disclosure by the receiving party) or are obvious to deduce by a person having general access to publicly available information, (ii) is generally known or easily ascertainable by nonparties of ordinary skill in computer design, programming, networking, information technology, or (iii) has been independently acquired or developed by the receiving party without violating any of its obligations under the Consulting Terms.
During the course of MCS performing the services required under the Consulting Statement Confidential Information may become available. The parties shall not disclose to any third party or use for the receiving party’s own financial or other benefit or for the financial or other benefit or any third party, any Confidential Information. Each party will use the Confidential Information of the other party only for the purpose of performing obligations under the Consulting Statement. Each party agrees to keep all Confidential Information of the other party confidential and not to disclose or reveal it in any manner. The receiving party shall exercise its best efforts to prevent unauthorized disclosure of the Confidential Information and shall immediately report any such unauthorized disclosure of which it is aware to the owner of the other party.
5. Relationship of the Parties. Client and MCS state and agree the terms set forth in the Consulting Statement and Consulting Terms create an independent contractor relationship and not an employer-employee relationship. Client is interested only in the results of MCS’s work, and the means, methods, and control of the work done by MCS will lie solely within MCS’s discretion subject to the terms of the Consulting Statement and Consulting Terms. MCS is not an agent or employee of Client for any purpose, and MCS is not entitled to any of the benefits Client may provide its employees. Client and MCS agree Client does not agree to exclusively use MCS’s services and MCS does not agree to work solely on behalf of Client. MCS and Client are not engaged in a partnership, joint venture, or any other business relationship other than the independent contractor relationship described in the Consulting Statement and Consulting Terms. Accordingly, MCS is expected to set its own schedule to meet any set deadlines. Client does not impose control over the means and manner MCS uses to accomplish its obligations hereunder. MCS acknowledges that, as an independent contractor, its employees are not entitled to claim unemployment insurance benefits upon termination of the Consulting Statement from Client.
6. Non-Solicitation of Employees. During the term of the Consulting Statement and for a period of twelve (12) months thereafter, Client agrees not to solicit, recruit, or employ any employee or contractor of MCS without the prior written consent of the President of MCS. MCS hereby agrees that it will not solicit, hire, or retain, in any capacity whatsoever any of Client’s employees without written consent from Client.
7. LIMITED WARRANTY. MCS warrants to Client the material, analysis, data, programs, and services to be delivered or rendered under the Consulting Statement will be of the kind and quality designated and will be performed by qualified personnel. Warranties available through third parties on equipment provided by MCS will be passed on to Client to the extent allowed by the applicable third-party warranty agreement.
MCS will use reasonable and customary procedures to perform the services in the Consulting Statement, provided however, MCS offers no guarantees or warranties, express or implied, as to system availability and functionality during any phase of its support services. One or more of the services provided hereunder may rely upon the availability of the data center where software is hosted. Although MCS makes every reasonable effort to ensure maximum data center availability, there is a possibility that the data center may become inaccessible or unavailable as a result of code upgrades, operating system instability, power failures, internet outages or other causes beyond MCS’s control, and MCS shall not be liable for any such event(s). MCS makes no guarantees or warranties, expressed or implied, regarding MCS’s ability to resolve Client’s specific technology issues, to recover data, or to avoid losing Client’s data.
MCS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION WARRANTY OF FITNESS FOR PURPOSE OF MERCHANTABILITY. IN NO EVENT SHALL MCS BE LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES, EITHER IN CONTRACT OR TORT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO MCS IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY MCS.
Furthermore, MCS shall not be liable for loss of profits or revenue, loss of use of equipment, lost data, costs of substitute equipment, third-party liability, or other costs associated with Client’s use of the services provided by MCS.
If any of the limitations of damages in this Paragraph 7 are held unenforceable, then the parties agree that by reason of the difficulty in foreseeing possible damages all liability to Client shall be limited to the total dollar amount of services paid by Client to MCS in the previous three full months.
8. Force Majeure & Malicious Acts. Client understands and agrees damage and/or significant problems that result from anomalies and/or abnormal circumstances such as fire, flood, electrical surges, deliberate malicious acts, theft, acts of God, wars, insurrections, government restrictions (including the denial or cancellation of any export or other necessary license) and/or any other cause beyond the reasonable control of either party fall outside the terms the Consulting Statement and the Consulting Terms, and therefore MCS will not be liable for such damage/problems.
9. Indemnification. At all times MCS shall use reasonable care to ensure the security of data and information exchanged or transmitted performing the services in the Consulting Statement (“Data”). However, the parties acknowledge and agree the use of any communications technology entails certain unavoidable risks, and no technology is 100% foolproof or immune from attack. Accordingly, Client shall hold MCS harmless from and against any claim, cause of action, loss, expense, cost, fine or fee arising from or related to the unintentional or accidental disclosure, misuse, or erasure of the Data, or any breach of security impacting or affecting the Data. In addition, Client shall similarly indemnify and hold MCS harmless against and from all claim, loss, liability, expense, and other detriment to which Client may be subjected by reason of any act or omission of MCS, its subcontractors, consultants, agents, directors and employees where such loss, liability, expense or other detriment arises out of or in connection with the performance of the services under the Consulting Statement and the Consulting Terms, including, but not limited to, personal injury and loss of or damage to property of Client or others. This indemnity shall not extend to any claims, damages, losses and expenses that are due to the sole negligence of MCS.
10. Term and Termination. The Consulting Statement is for the period of six (6) months, and shall automatically renew thereafter for successive additional term(s) of one (1) year (each a “Renewal Term”) until the Consulting Statement is terminated by either party by written notice given to the other party at least ninety (90) days prior to the expiration of the term or Renewal Term. Notwithstanding the foregoing, the terms and conditions of the Consulting Terms shall continue to apply with respect to any Addendum that, by its terms, continues in effect after the date of termination of the Consulting Statement, or while any uncured event of default by Client exists.
Upon termination of the Consulting Statement, MCS shall uninstall all remote monitoring and management software from Client equipment; Client shall grant MCS such access as required to do so. Client acknowledges this may leave its computers and other equipment without adequate systems for updates to operating systems, software, and virus scanning programs. MCS shall not be held responsible for any damages or consequences resulting from the removal of remote monitoring and management software.
11. Complete Agreement. The Consulting Statement and the Consulting Terms, all attached Exhibits, and any subsequent Service Orders contain the entire agreement between the parties hereto with respect to the matters covered herein, and supersedes any previously signed agreement as of the Effective Date of the Consulting Statement. No other agreements, representations, warranties, or other matters, oral or written, purportedly agreed to or represented by or on behalf of MCS, by any of its employees or agents, or contained in any sales material or brochures, shall be deemed to bind the parties hereto with respect to the subject matter hereof. Client acknowledges it is entering into the Consulting Statement solely on the basis of the representation contained herein.
12. Notices. To be effective, notices should be sent to the party’s address as set forth in the Consulting Statement to which this Consulting Terms is attached, or as subsequently provided to the other party in writing.
13. Communications. All notices and other communications shall be acceptable if they are in writing or sent via electronic communication (i.e. via facsimile or e-mail). Voicemail is not an acceptable form of communication resulting in a binding transaction under these Consulting Terms. Only a written instrument executed by both parties hereto may modify these Consulting Terms.
14. Miscellaneous Terms. The Consulting Terms shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legatees, representatives, successors, and assigns. Notwithstanding the foregoing, Client’s rights and obligations under the Consulting Terms shall not be transferred or assigned without MCS’s written (not electronic) consent. The Consulting Terms and Consulting Statement shall be construed and interpreted in accordance with the laws of the State of Minnesota to the exclusion of the conflicts-of-laws provisions thereof. The parties agree the venue for any legal action related to or arising from the Consulting Terms and the Consulting Statement shall be in the Minnesota state District Court for Hennepin County, or the Federal District Court for the District of Minnesota, although any party seeking injunctive or other relief that will not be effective unless brought in another court may bring an action therefore in such other Court as may be necessary to secure such enforceable relief. The parties stipulate to personal jurisdiction in Minnesota. The Consulting Statement may be executed in any number of counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same instrument. No failure by a party hereunder to exercise and no delay in exercising any rights hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any rights hereunder preclude any other or further exercise thereof or the exercise of any other right. Remedies herein provided are cumulative and not exclusive of any other remedy provided by law. The exhibits to the Consulting Statement and the Consulting Terms are hereby made a part hereof. Defined terms used in the exhibits shall have the meanings given to them in the Consulting Terms unless otherwise stated in the exhibit(s) where the terms are used. In the event of a conflict in the provisions of any Addendums hereto and the provisions set forth in the Consulting Terms, the provisions of the Addendum shall govern. As used herein, reference to any Article, Paragraph, Section, Subparagraph, or Subsection shall apply or reference to only said Article, Paragraph, Section, Subparagraph, or Subsection of the Consulting Terms unless specifically indicated otherwise. All of the provisions of the Consulting Terms are separable, so if any provision of the Consulting Terms is held to be ineffective by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect, unless the invalidated provision is so fundamental to the Consulting Terms that the remaining provisions do not reflect the parties’ intent. The Consulting Terms have been cooperatively negotiated by and among the parties hereto, and it shall not be construed against any party hereto as its author.