Master Services Agreement for Partners

The following terms and conditions govern our business relationship with you.  Please read these terms carefully and print a copy for your records.

Scope; Services

This Master Services Agreement (this “Agreement”) governs all services, products, and licenses that IT By Design, Inc., a New Jersey corporation (“us”, “our”, “we” or “ITBD”), provides, sells, or re-sells to you (“Customer”, “you”, or “your”).

In this Agreement, “Services” means the performance of all obligations of ITBD to you, including all obligations related to our consulting services, staffing services, development, programming, management, operations, sales (including sales of Products), value-added, and other services as described in one or more statements of work (each, a “SOW”) that we provide to you.   “Services” include all of the foregoing regardless of the length of our relationship and regardless of the amount of fees, or frequency of your payment, for the Services (e.g., free-trial, subscription, installment, monthly, etc.).  “Products” means any hardware, equipment, or software that we sell, re-sell, lease, or license to you. “SOW” means a statement of work, SOW, proposal, service order or similar document (electronic or otherwise) through which Services or Products are provided or facilitated.

By accepting an SOW, you agree to the terms of this Agreement.  If you do not agree with the terms of the SOW and/or this Agreement, you should not accept the SOW.

This document contains an arbitration provision that requires, under most circumstances, disputes to be settled by arbitration and not by a judge or jury. Please read the “Arbitration” section of this Agreement carefully. This document also contains important provisions regarding your payment obligations, automatic renewal of ongoing services, limitations of liability, and other significant matters; please read this document and consider those issues carefully before accepting an SOW.

This document limits or, in some cases, eliminates the liability of ITBD for Services that it does not provide directly to you and/or which are provided to you by third parties (defined as “Third Party Services” and “Third Party Providers,” below). Please read this document and consider such limitations carefully before accepting an SOW.

Conflict. The provisions of an SOW govern over conflicting or materially different terms contained in this Agreement, which allows us to craft solutions to meet your needs by making applicable changes in the SOW.

Delivery.  ITBD shall determine the most appropriate means of providing the Service, including the method, technology, and route of delivery of the Service to you, and ITBD may vary the method, technology, and route of delivery at any time without notice.

Third Party Providers/Services. Some services may be provided to you directly by our personnel. These services are distinguishable from services that are provided to you or us by third party providers, who are referred to as “upstream providers.”  (In this Agreement, we call upstream providers “Third Party Providers” and the services that Third Party Providers provide are called “Third Party Services”). We are resellers and/or facilitators of the Third Party Services and, for this reason, we are not and cannot be responsible for any defect, act, omission, or failure of any Third Party Service or any failure of any Third Party Provider. Third Party Services are provided on an “as is” basis only. If an issue requiring remediation arises with a Third Party Service, then we will endeavor to provide a reasonable workaround or, if available, a “temporary fix” for the situation; however, we do not warrant or guarantee that any particular workaround or fix will be available or achieve any particular result, or that Third Party Services will run in an uninterrupted or error-free manner.

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 in an applicable SOW 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 SOW, 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 a change of status of the Authorized Contact. If your change is provided to us in writing (physical document or by email), then the change will be implemented within two (2) business days after the first business day on which we receive your change notice. If your change notice is provided to us in person or by telephone (live calls only), the change will be implemented on the same business day on which the conversation takes place. We reserve the right but not the obligation to delay the Services until we can confirm the Authorized Contact’s authority within your organization.

Fees; Payment

Fees.  You agree to pay the fees, costs, and expenses described in each SOW.   You are responsible for all taxes, including but not limited to import or export duties, sales, use, VAT, and excise taxes associated with the Services. If you qualify for a tax exemption, you must provide us with a valid certificate of exemption or other appropriate proof of exemption.

Schedule.   All fees will be due and payable in advance of the provision of the Services.  Unless otherwise expressly stated in an SOW, all Products must be fully paid for prior to delivery.  If applicable, recurring payments made by ACH will be deducted from your designated bank account on the first business day of the month in which the Services are to be provided, and if applicable, your designated credit card will be charged on the first business of the month in which the Services are to be provided.

Payment Methods. The fees listed in an SOW assume that all payments will be paid in cash by electronic transfer (i.e., ACH). If you desire to pay by credit card or by check, then (i) for credit card payments we reserve the right to charge a convenience fee equal to the actual costs we incur to accept your credit card, which will not be more than four percent (4%) of the amount invoiced and (ii) for payments by check, we will add a convenience fee to the invoice equal to three percent  (3%) of the amount invoiced. When enrolled in an ACH payment processing method, you authorize us to electronically debit your designated checking or savings account for any payments due under the SOW.  This authorization will continue until otherwise terminated in writing by you.  We will apply a $20.00 service charge (or the maximum amount permitted by law, whichever is less) to your account for any electronic debit that is returned unpaid due to insufficient funds or due to your bank’s electronic draft restrictions.

Nonpayment. Fees that remain unpaid for more than fifteen (15) days when due will be subject to interest on the unpaid amount(s) from the due date until and including the date payment is received, at the lower of either 1.5% per month or the maximum allowable rate of interest permitted by applicable law. We reserve the right, but not the obligation, to suspend part or all the Services without prior notice to you if 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 the date on which an applicable invoice is delivered to you, 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.

Your Obligations

In addition to any of your obligations under an SOW or as described elsewhere in this Agreement, you agree to the following:

• Cooperation. The Services require your cooperation and, depending on the scope of the SOW, may require your ongoing involvement or input. You agree to always cooperate with our personnel and to timely provide your input and/or information when reasonably requested by ITBD.  ITBD will be held harmless from any delays occasioned by your failure to cooperate with our personnel or your failure to timely provide information when reasonably requested.

• Access. Portions of the Services may require us to access your physical or virtual premises, including any servers, workstations, mobile devices, and related hardware that we manage, administer, or for which you have requested technical support (collectively, “Managed Environment”). You hereby grant us and our designated third party vendors the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the Environment solely as necessary to enable us to provide the Services.  It is your responsibility to secure, at your own cost, any necessary rights of entry, licenses (including third party software licenses), permits or other permissions necessary for ITBD to provide the Services to the Managed Environment and, as applicable, at your designated physical premises.  Proper and safe environmental conditions must be always provided and assured by you. ITBD 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.

• Advice. From time to time, we may provide you with specific advice and directions related to the Services. You are strongly advised to promptly follow our advice which, depending on the situation, may require you to make additional purchases or investments in the Managed Environment or the location in which the Managed Environment is maintained, at your sole cost.  We will not be responsible for any problems or issues caused by your failure to promptly follow our advice.  If, in our reasonable discretion, your failure to follow or implement our advice renders part or all of the Services economically or technically unreasonable or impracticable to provide and that failure is not remediated within ten (10) days after we provide notice of the circumstances to you, then we may terminate the applicable SOW for cause by providing notice of termination to you.  Unless specifically and expressly stated in a SOW, any services required to remediate issues caused by your failure to follow our advice or directions are out-of- scope and not covered under any SOW.

Limited Warranties; Limitations of Liability

Products Purchased Through ITBD.  All Products purchased through ITBD are generally nonrefundable once the Product is ordered from ITBD’s third party provider, reseller, or applicable software vendor (the “Third Party Vendor”).  If you require a refund, then the Third Party Vendor’s return policies will apply.  We do not guarantee Products will be returnable, exchangeable, or that re-stocking fees can or will be avoided.  You will be responsible for the payment of all re-stocking or return-related fees charged by the Third Party Vendor. We will use reasonable efforts to assign, transfer, and facilitate all warranties (if any) and service level commitments (if any) for the Products to you. We will have no liability whatsoever for the quality, functionality, or operability of any Products, and we will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Products.  All Products are provided “as is” and without any warranty whatsoever as between ITBD 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 ITBD would not provide any Services, or enter into any SOW or this Agreement, unless ITBD 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 ITBD), savings, or other indirect or contingent event-based economic loss arising out of or in connection with the Services, this Agreement, any SOW, or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement or any SOW, even if a party has been advised of the possibility of such damages; however, amounts you owe us under this Agreement, reasonable attorneys’ fees awarded to a prevailing party (as described below), your indemnification obligations, and any amounts due and payable pursuant to the non-solicitation 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 ITBD 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 $10,000, or the amounts that are actually paid out under a Responsible Party’s insurance policy, whichever is greater. The parties agree that only one of the foregoing financial remedies may be selected by an Aggrieved Party and once selected, the selected remedy shall be the sole financial remedy available to the Aggrieved Party to the exclusion of all other remedies.  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 such limitations are prohibited under applicable law, or 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, gross negligence, or to the extent that the Aggrieved Party failed to reasonably mitigate (or attempt to mitigate, as applicable) the Claims. Under no circumstances shall ITBD have any liability for any claims or causes of action arising from or related to Out of Scope Services.

No Guaranties.  Without limiting the generality of the foregoing, we do not warrant that (i) any particular results will occur as a result of your use of the Services or any Product, or that at any Services, Product, or data will be free from errors, defects, or bugs, or that (ii) the Services or any Product will not interfere with or disrupt any of your networks, security or other systems, or software. We expressly disclaim, and you expressly waive under this Agreement, all implied warranties including warranties of merchantability, fitness for a particular purpose, non- infringement, system integration, accuracy of informational content, and accuracy of the methodology used to develop or provide the Services.

Indemnification

Each party (an “Indemnifying Party”) agrees to indemnify, defend, and hold the other party (an “Indemnified Party”) harmless from and against all losses, damages, costs, expenses, or liabilities, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to, the Indemnifying Party’s 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. 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

Term.  This Agreement begins on the earliest date on which you accept a SOW and continues until terminated as described in this Agreement.  Each SOW will have its own term and will be terminated only as provided herein, unless otherwise expressly stated in the applicable SOW.  The termination of one SOW shall not, by itself, cause the termination of or otherwise impact this Agreement or the status or progress of any other SOW between the parties.

Termination Without Cause.  Unless otherwise agreed by the parties in writing or otherwise permitted under this Agreement, no party will terminate this Agreement without cause if, on the date of termination, a SOW is in progress or if amounts are due and owed by you to ITBD.  In addition, no party will terminate an SOW without cause prior to the SOW’s natural or stated expiration or termination date.  If you terminate an SOW without cause and without ITBD’s consent, then you will be responsible for paying the termination fee described in the “Termination for Cause” section, below.  If no SOW is in progress, then this Agreement will expire thirty (30) days after the last date on which Services are provided or facilitated by ITBD to you.

Termination For Cause.  In the event that one party (a “Defaulting Party”) commits a material breach under a SOW or under this Agreement, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately this Agreement or the relevant SOW (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.

If ITBD terminates this Agreement or any SOW For Cause, or if you terminate any SOW without cause prior to such SOW’s expiration date, then ITBD shall be entitled to receive, and you hereby agree to pay to us, all amounts that would have been paid to ITBD had this Agreement or SOW (as applicable) remained in effect.  If you terminate this Agreement or a SOW For Cause, then you will be responsible for paying only for those Services that were properly delivered up to the effective date of termination; and, if applicable, you will be refunded any pre-paid fees that you paid to us for Services that were not delivered satisfactorily.

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, an indication of default by ITBD.

Customer Activity As A Basis for Termination.  If you or any of your staff, personnel, contractors, or representatives engages in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide or facilitate the Services to you and the activity does not cease after we provide notice of the issue(s) to you, then in addition to ITBD’s other rights under this Agreement, ITBD will have the right upon providing you with ten (10) days prior written notice, to terminate this Agreement or the applicable SOW For Cause.

Consent.  You and we may mutually consent, in writing, to terminate an SOW or this Agreement at any time.

Equipment / Software Removal.  Upon termination of this Agreement or applicable SOW for any reason, you agree to return to us all ITBD-supplied equipment (such as equipment provided under a hardware-as-a-service paradigm). If any of the equipment is missing, broken or damaged (normal wear and tear excepted) or any ITBD-supplied software is missing, we will have the right to invoice you for, and you hereby agree to pay immediately, the full replacement value of all missing or damaged items.

Software Agents. Certain services may require the installation of software agents in the managed environment (“Software Agents”). Unless we expressly direct you to do so, you will not remove or disable, or attempt to remove or disable, any Software Agents.  Doing so without our guidance may make it difficult or impracticable to remove the Software Agents, which could result in network vulnerabilities and/or the continuation of license fees for which you will be responsible, and/or the requirement that we remediate the situation at our then-current hourly rates, for which you will also be responsible.

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 ITBD 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 SOW or Services Guide or prohibited by applicable law, we will have no obligation to store or maintain any Client data in our possession or control following the termination of this Agreement or the applicable Services.

Response Time; Exceptions

Response.  We warrant and represent that we will provide the Services in the manner and within the time period(s) designated in an applicable SOW (“Response Time”) except for (i) those periods of time covered under the Onboarding Exception (defined below), or (ii) periods of delay caused by Customer-Side Downtime (defined below), Vendor-Side Downtime (defined below) or (iii) periods in which we are required to suspend the Services to protect the security or integrity of the Managed Environment or our equipment or network, or (iv) delays caused by a force majeure event.

Scheduled Downtime. Scheduled Downtime means those hours, as determined by us but which will not occur between the hours of 8:00 AM and 5:00 PM Eastern Time, Monday through Friday, without your authorization or unless exigent circumstances exist, during which time we will perform scheduled maintenance or adjustments to the managed environment.  We will use our best efforts to provide you with at least twenty- four (24) hours of notice prior to scheduling Scheduled Downtime.

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”).

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.

Onboarding Exception.  You acknowledge and agree that for the first forty-five (45) days following the commencement date of a SOW, the Response Time commitments described in this Agreement will not apply to us, it being understood that there may be unanticipated downtime or delays due to our initial startup activities and/or familiarization with you (the “Onboarding Exception”).

Remedies; Limitations.  Except for the Onboarding Exception, if we fail to meet our service level commitment in a given calendar month and if, under such circumstances, our failure is not due to your activities, omissions, or inactivity, then upon receiving your written request for credit, we will issue you a pro-rated credit in an amount equal to the period of time of the outage and/or service failure.  All requests for credit must be made by you no later than forty-five (45) days after you either (i) report the outage or service failure to us, or (ii) if applicable, receive a monthly report showing the outage and/or failure.  The remedies contained in this paragraph and in the “Term; Termination” section above are in lieu of (and are to the exclusion of) any and all other remedies that might otherwise be available to you for our failure to meet any service level commitment during the term of this Agreement.

Confidentiality

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. 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.

Use.  Each party will keep the other party’s Confidential Information 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 the receiving party’s obligations under this Agreement.  In any event, a party receiving Confidential Information shall tailor its permitted disclosure to the minimum amount necessary to fulfill that party’s obligations under this Agreement.

Due Care.  Each party will exercise the same degree of care with respect to the Confidential Information its receives 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.

Compelled Disclosure.  If a party is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, it will immediately notify the other party in writing of such requirement so that the other party 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, 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, a Recipient may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that it has been advised, by written opinion from its counsel, that it is legally compelled to disclose.

Additional NDA. In our provision of the Services, 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. 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. If in the normal provision of the Services we are in receipt of or otherwise have access to personal health information (as defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), we will be your business associate as that term is defined under HIPAA and will enter into a mutually agreeable Business Associate Agreement.

Arbitration

Except for undisputed collections actions to recover fees due to us (“Collections”) or any amounts that qualify for small claims court jurisdiction in our local jurisdiction, all disputes, claims, or controversies 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. There is no jury involved in arbitration, and by agreeing to arbitrate you are agreeing to waive any right you may have to a trial by a jury. The arbitration shall be administered and conducted by the American Arbitration Association (the “AAA”) pursuant to the AAA’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 commercial contracts and information technology transactions. If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the AAA 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.

Additional Terms

Incident Mitigation Coverage.  If an incident occurs for which you intend to apply for insurance coverage (an “Insurable Incident”), you are advised to first notify your insurance carrier prior to requesting that we attempt to remediate the Insurable Incident. Some insurance policies may require you to use specific solution providers other than ITBD to remediate Insurable Incidents, and the use of non-carrier approved vendors may reduce or nullify your insurance coverage.  If you request that we remediate an Insurable Incident, then you agree that (i) our services will be billed to you, and you agree to pay for those services, at our then-current hourly rates (unless we agree otherwise in writing), and (ii) you waive all rights of subrogation for the Insurable Incidents and we, as well as our insurance carrier(s), will be held harmless if our efforts negatively impact your insurance coverage.

End User Agreements. Portions of the Services may require you to accept the terms of one or more third party end user license agreements (EULAs), third party customer agreements, and/or third party subscription agreements (collectively, “End User Agreements”). If the acceptance of an End User Agreement is required for you to receive any Services, then you hereby grant us permission to accept the applicable agreement(s) on your behalf.  You may request a list of all End User Agreements into which we have entered on your behalf by sending your written request to us (email is sufficient for this purpose). If an End User Agreement deviates materially from industry-standards (i.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 may contain service levels, warranties and/or liability limitations different from those contained in this Agreement. You agree to be bound by the terms of all applicable End User Agreements. If, while providing the Services, you or we are required to comply with an End User Agreement and that agreement is modified or amended, we reserve the right to modify or amend any applicable SOW with you to ensure your and our continued compliance with the terms of the applicable End User Agreement.

Data Loss. Under no circumstances will we be responsible for any data lost, corrupted or rendered unreadable due to (i) communication and/or transmission errors or related failures, (ii) equipment failures (including but not limited to silent hardware corruption-related issues), or (iii) our failure to backup or secure data from portions of the Environment that were not expressly designated in the applicable SOW as requiring backup or recovery services.  Unless expressly stated in a SOW, we do not warrant or guarantee that any maintained storage device or functionality, data backup device or functionality, or load balancing functionality will operate in an error-free manner.

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 SOW shall be deemed to convey or grant any ownership rights or goodwill in one party’s Intellectual Property to the other party.  If we provide licenses to you for third party software under a SOW, then you understand and agree that such software is licensed, and not sold, to you.  You are allowed to use such third party software subject to the terms and conditions (i) of this Agreement, (ii) of the applicable SOW, and (iii) any applicable EULA; no other uses of such third party software are 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.

Compliance; No Legal Advice. Unless otherwise expressly stated in a SOW, 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 SOW, 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, or response plan (“Plan”) 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 ITBD that pertain to or impact Applicable Laws.  Client understands that any Plan provided to Client will be based on the status of the applicable rules/laws in place at the time that the Plan is delivered, and subsequent changes to the status or content of any applicable laws/rules may render the Plan obsolete.

Disclosure.  You warrant and represent that you know of no law or regulation governing your business that would impede or restrict our provision of the Services, or that would require us to register with, or report our provision 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.

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 any security-related product or solution implemented or facilitated by us will be capable of detecting, avoiding, quarantining, or removing all malicious code, spyware, malware, etc., or that any data deleted, corrupted, or encrypted by any of the foregoing (“Impacted Data”) will be recoverable. Unless otherwise expressly stated in a SOW, the recovery of Impacted Data is out-of-scope. Moreover, unless expressly stated in a SOW or Services Guide, 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 are held harmless from any costs, expenses, or damages arising from or related to such incidents.

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 should 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.

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 solicit, induce, or encourage a Restricted Employee to discontinue or reduce the scope of the Restricted Employee’s business relationship with the other party. In the event of a violation of the terms of the restrictive covenants in this section, the parties acknowledge and agree that the damages to the other party would be difficult or impracticable to determine, and in such event, if the Restricted Party does not promptly cure the situation after receiving notice of the breach from the other party, then the Restricted Party will pay the other party as liquidated damages and not as a penalty an amount equal to fifty thousand dollars ($50,000) 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 then-current SOW immediately For Cause.

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 recover all costs and fees we incur in the Collections process including but not limited to reasonable attorneys’ fees and costs.

Publicity. You hereby allow us, and hereby provide us with the necessary rights and licenses, to copy, print, and use your corporate name and logo on our website and/or in any of our marketing materials to identify you as a customer of ITBD.

Merger. This Agreement coupled with each SOW sets forth the entire understanding of the parties and supersedes all prior agreements, arrangements or understandings related to the Services; however, any payment obligations that you have or may have incurred under any prior or superseded agreement 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 an SOW. Marketing materials and 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

Fair Usage.  Our Fair Usage Policy (“FUP”) applies to all Services in a SOW that are described or designated as “unlimited.”  An “unlimited” service designation means that 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 a SOW, 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), (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.

Assignment. Neither this Agreement nor any SOW 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 transferred in which ownership of more than fifty percent (50%) of our voting securities are transferred; provided, however, that such assignee expressly assumes our obligations hereunder.

Amendment.  ITBD reserves the exclusive and unilateral right to modify or amend this Agreement or any SOW by providing you with notice of the changes in writing. If the change is required by operation of law (either in New Jersey or in the venue in which our support technicians are located), then the change will take place immediately upon your receipt of our notice. For all other changes: If the changes do not materially diminish the services provided to you, then the changes will take effect fourteen (14) days after notice of the changes are delivered to you; however, if such a change to this Agreement materially diminishes any service provided to you hereunder, then then notwithstanding any provision to the contrary in this Agreement, you will be provided with a fourteen (14) day period to terminate this Agreement without cause and you will be responsible solely for paying for all fees that accrue through the termination date.  If   we do not timely receive your notice of termination, then this Agreement will continue unabated and as modified by the changes that were provided to you.

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

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

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 such terms or conditions are incorporated into a duly executed SOW, or unless we have expressly acknowledged the other terms and, thereafter, expressly and specifically accepted such other terms in writing.

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.

Force Majeure.  Neither party will be liable to the other party for delays or failures to perform its obligations under this Agreement or any SOW 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, pandemics, 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.

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.

Insurance.  ITBD and you will each maintain, at each party’s own expense, all insurance reasonably required in connection with this Agreement or any SOW, including but not limited to, workers compensation and general liability.  We agree to maintain a general liability policy with a limit not less than $1,000,000 per occurrence. We also agree to maintain Professional Liability insurance and will have Client included in the policy as an Additional Insured. Such status will provide protection, subject to the policy terms and conditions, where liability is imposed on Client as a result of the wrongful acts of ITBD. Such insurance will bear a combined single limit per occurrence of not less than One Million Dollars ($1,000,000). All of the insurance policies described herein will not be canceled, materially changed or renewal refused until at least thirty (30) calendar days written notice has been given to the other party by certified mail.

Governing Law; Venue.  This Agreement and any SOW will be governed by, and construed according to, the laws of the state of New Jersey.  You hereby irrevocably consent to the exclusive jurisdiction and venue of the state courts in Hudson County, New Jersey, for all non-arbitrable  claims and causes of action arising from or related to this Agreement; provided, however, that we may bring an action for temporary injunctive relief in any jurisdiction to prevent the actual or anticipated breach of this Agreement or any SOW by you.

No Third Party Beneficiaries.  The Parties have entered into this Agreement solely for their own benefit.  They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.

Business Day. If a time period set forth in this Agreement expires on a day other than a business day in Hudson County, New Jersey, such period will be extended to and through the next succeeding business day in Hudson County, New Jersey.

Notices; Writing Requirement.  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 legal notices. All electronic documents and communications between the parties, including email, will satisfy any “writing” requirement under this Agreement.  Notices that are sent by U.S. mail or courier to ITBD shall be sent to IT By Design, 10 Exchange Place, 17^th Floor, Jersey City, New Jersey 07302. We may send notices to the last known physical address that we on file for you.

Independent Contractor.  ITBD is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between you and either ITBD or any employee or agent of ITBD.  Each party will be solely responsible for payment of all compensation owed to its employees, as well as federal and state income tax withholding, Social Security taxes, and unemployment insurance applicable to such personnel as employees of the applicable party. Each party shall bear sole responsibility for any health or disability insurance, retirement benefits, or other welfare or pension benefits (if any) to which such party’s employees may be entitled.

Subcontractors.  Generally, we do not utilize subcontractors to perform onsite services; however, should we elect to subcontract a portion of those services, we will guarantee the work as if we performed the subcontracted work ourselves. For the purposes of clarity, you understand and agree that Third Party Services are resold to you and, therefore, are not contracted or subcontracted services; and Third Party Providers are not our contractors or subcontractors

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.

Access Licensing.  One or more of the Services may require us to purchase certain “per seat” or “per device” licenses (often called “Access Licenses”) from one or more Third Party Providers. (Microsoft “New Commerce Experience” licenses as well as Cisco Meraki “per device” licenses are examples of Access Licenses.) Access Licenses cannot be canceled once they are purchased and often cannot be transferred to any other customer. For that reason, you understand and agree that regardless of the reason for termination of the Services, fees for Access Licenses are non-mitigatable and you are required to pay for all applicable Access Licenses in full for the entire term of those licenses. Provided that you have paid for the Access Licenses in full, you will be permitted to use those licenses until they expire.

Critical Vendor Status.  If 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.

Counterparts. The parties intend to sign, accept and/or deliver any SOW, this Agreement, or any amendment in any number of counterparts, and each 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 SOW, this Agreement, or any amendment electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature) or by reference (as applicable).

This page was last updated on: January 12, 2024.